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University  of  California. 


C1R  FNG    BRANCH. 


Return  in  IWWL  week?  ;  or  a  week  before  the  end  of  tlie  term. 


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HISTORICAL  SKETCH 


OF    THE 


JUDICIAL   TRIBUNALS 


NEW  YORK, 


FROM 


1623   TO   1846. 


BY  CHARLES  P.  DALY, 

USE  OF  THE  JUDGES  OF  THB  MEW  YOBK  COMMON  PLEAS. 


$ork  : 


JOHN    W.   AMERMAN,    PRINTER, 
No.  60  WILLIAM-STREET. 

1855. 


HISTORY 


COURT   OF   COMMON  PLEAS 


CITY  AND  COUNTY  OF  NEW  YORK, 

WITH    AN    ACCOUNT    OF 

THE  JUDICIAL  ORGANIZATION  OF  THE  STATE 

AND  OF  ITS   TRIBUNALS, 

FROM  THE  TIME  OF  ITS   SETTLEMENT    BY  THE   DUTCH,  IN  1623, 
UNTIL  THE  ADOPTION  OF  THE  STATE  CONSTITUTION  OF  1846. 


THE  following  sketch  was  written  and  has  recently  been  published  as  an  introduc- 
tion to  the  first  volume  of  the  Reports  of  the  New  York  Court  of  Common  Pleas,  by 
E.  DELAFIELD  SMITH,  Esq.  (1  E.  D.  Smith,  xvii.)  The  court  being  the  oldest  judi- 
cial tribunal  in  this  state,  it  became  necessary,  in  preparing  an  account  of  it,  to  make 
a  thorough  investigation  of  the  judicial  history  of  the  state,  from  its  settlement  to  the 
present  period.  As  it  was  essential,  in  such  an  investigation,  to  consult  not  only  a 
number  of  works,  historical,  biographical,  and  otherwise,  but  to  go  into  a  very  labo- 
rious examination  of  manuscript  records  and  early  colonial  documents,  it  was  felt 
that  the  information  obtained  should  at  least  be  preserved ;  and  though  it  was  not 
originally  the  intention  of  the  writer  to  do  anything  more  than  to  furnish,  at  the 
request  of  the  reporter,  a  history  of  the  court  of  common  pleas,  he  finally  con- 
cluded to  connect  with  it  an  account  of  the  judicial  tribunals  of  the  state  from 
the  time  of  its  settlement.  It  was  deemed  the  more  necessary  to  do  so,  as  every 
thing  relating  to  the  administration  of  justice  during  the  early  period  of  the  colony 
of  New  York,  or,  as  it  was  then  called,  New  Netherland,  has  hitherto  been  involved 
in  the  greatest  obscurity.  Our  first  historian,  Chief  Justice  Smith,  devotes  but  a 
few  pages  to  the  period,  and  had  little  to  communicate  but  the  fact  of  the  settle- 

YOL.  I.  B 


*  HISTORY   OF   THE   COTJET  AND   OF   THE 

ment  of  the  colony  by  the  Dutch,  and  the  particulars  of  its  surrender  to  the  English. 
The  late  Mr.  Graham,  \vho  published,  in  1834,  a  work  on  the  jurisdiction  of  our 
courts,  merely  copied  what  he  found  in  Smith,  arid  went  even  so  far  as  to  assume 
that  there  was  nothing  remaining  to  show  what  courts  existed  among  the  Dutch,  or 
that  would  shed  any  light  upon  the  manner  in  which  justice  was  administered  by  them. 
He  appears  to  have  relied  upon  the  absence  of  any  information  in  the  pages  of  Smith, 
and  to  have  made  no  investigation  himself,  for,  on  the  contrary,  the  records  of  these 
early  courts,  in  the  Dutch  language,  from  the  first  establishment  of  a  regular  and  fixed 
judicial  tribunal,  until  the  close  of  the  Dutch  dynasty,  have  always  remained  in  the  city 
of  New-York.  It  is  nearly  the  same  in  respect  to  the  first  half  century  after  the  colony 
had  passed  into  the  hands  of  the  English.  All  that  has  been  known  of  the  tribunals 
which  then  existed,  is  what  has  been  furnished  by  Smith.  But  though  his  work  was 
written  nearly  a  century  ago,  and  it  might  be  supposed,  as  he  was  a  lawyer  by  pro- 
fession, that  he  would  have  taken  some  pains  to  investigate,  his  account,  on  the  con- 
trary, is  not  only  very  meagre,  but  grossly  inaccurate.  In  respect  to  his  own  period,  and 
for  a  quarter  of  a  century  before  it,  he  was  well  informed ;  but  in  all  that  relates  to 
a  period  anterior,  bis  history  is  of  little  or  no  value.  Since  his  time,  no  attempt  has 
been  made  thoroughly  to  investigate  the  subject.  Indeed,  without  the  aid  of  the 
documentary  information,  obtained  by  Mr.  Brodhead  from  the  state  offices  at  Lou- 
don  and  at  the  Hague,  it  would  have  been  difficult  to  do  so.  The  deposit,  however, 
in  the  state  department  at  Albany,  of  copies  of  the  documents  found  by  Mr.  Brod- 
head, has  supplied  facts  heretofore  wanting,  while  the  admirable  arrangement  and 
classification  of  the  colonial  manuscripts,  by  Dr.  O'Callaghan,  has  enabled  an  inves- 
tigator to  get  at  sources  of  information  which  before  were  scarcely  within  his  reach. 
To  the  latter  gentleman  the  writer  returns  his  acknowledgments  for  facilities  afforded 
in  inspecting  these  manuscripts,  for  much  valuable  information,  and  many  useful 
hints  in  the  course  of  his  inquiries. 

The  colony  of  New  Netherland  was  planted  by  the  West  India  Company,  a  com- 
mercial corporation  of  Holland.  This  corporation  had  obtained  from  the  states  general 
an  exclusive  charter  or  patent,  to  found  colonies  and  carry  on  trade,  navigation  and 
commerce  upon  the  coast  of  Africa,  North  America  and  the  West  Indies;1  and,  for 
tbis  purpose,  was  invested,  among  other  things,  with  the  most  comprehensive  judicial 
powers.  It  was  exclusively  entrusted  with  the  administration  of  justice  in  the 
colonies  it  should  establish,  having  the  right  to  appoint  governors,  officers  of  justice, 
and  all  other  public  officers ;  to  maintain  order  and  police,  and  generally,  in  the 
language  of  the  charter,  to  do  all  that  the  service  of  those  countries  might  require.2 
The  government  of  this  gigantic  corporation  was  vested  in  five  separate  chambers, 
to  one  of  which,  the  chamber  of  Amsterdam,  was  committed  the  management  of 
the  affairs  of  New  Netherland,  the  general  executive  power  of  the  whole  body 
being  entrusted  to  nineteen  delegates,  representing  conjointly  the  separate  chambers 
and  the  states  general,  and  which  was  known  by  the  appellation  of  the  College  of 
Nineteen.  The  colony  of  New  Netherland  was  formally  organized  by  May,  the  first 
director  or  governor  appointed  for  it  by  the  Amsterdam  chamber,  and  a  settlement  was 
established  at  Manhattan,  the  present  site  of  the  city  of  New  York,  in  1623.  May's 


*  Brodhead,  184.    O'Call.  184. 

8  O'Callaghan,  App.  400 ;  Charter,  art.  2. 


JUDICIAL   ORGANIZATION   OF  THE   STATE.  5 

administration  lasted  but  a  year,  and  whether  during  this  brief  period,  or  in  that  of 
his  successor,  Verhulst,  whose  rule  was  equally  short,  any  provision  was  made  for  the 
administration  of  justice,  there  is  now  no  means  of  determining.  The  number  of  the 
colonists,  however,  was  so  small,  and  they  were  so  fully  occupied  in  providing  for  their 
immediate  wants,  that  there  could  be  little,  if  any,  occasion  for  organizing  a  judicial 
tribunal.  In  1626,  Minuit  came  out  as  governor.  He  had,  to  assist  him,  a  council 
of  five,  who,  with  himself,  were  invested  with  all  legislative,  executive  and  judicial 
powers,  subject  to  the  supervision  and  appellate  jurisdiction  of  the  chamber  at 
Amsterdam.1  There  was  also  attached  to  this  body  an  officer,  well  known  in  Holland 
by  the  title  of  the  Schout  Fiscal.  He  was  a  kind  of  attorney  general,  uniting  with 
the  power  of  a  prosecuting  officer  the  executive  duties  of  a  sheriff ;  a  more  particular 
enumeration  of  whose  duties,  from  the  careful  compilation  of  Dr.  O'Callaghan,  will 
be  found  in  a  note.2 

To  the  governor,  his  council,  and  the  schout  fiscal,  the  administration  of  justice 
was  left  during  the  six  years  that  Minuit  was  governor,  and  the  four  years  of  his 
successor,  Van  Twiller,  that  is,  from  1626  to  1637.  In  what  manner  judicial  pro- 
ceedings were  conducted  is  unknown.  Records  were  kept  under  Van  Twiller,  but 
they  are  now  irretrievably  lost.3  His  schout  fiscal,  however,  Lubbertus  Van  Din- 


1  Brodhead,  162.    This  council  had  criminal  jurisdiction  to  the  extent  of  fine,  &c. 

a  He  was  charged  specially  with  enforcing  and  maintaining  the  placards,  ordinances,  resolutions 
and  military  regulations  of  the  high  mightinesses,  the  states  general,  and  protecting  the  rights, 
domains  and  jurisdiction  of  the  company,  and  executing  the  orders  as  well  in  as  out  of  court, 
without  favor  or  respect  to  individuals ;  he  was  bound  to  superintend  all  prosecutions  and  suits, 
but  could  not  undertake  any  actions  on  behalf  of  the  company,  except  by  order  of  the  council,  nor 
arraign  nor  arrest  any  person  upon  a  criminal  charge,  unless  upon  information  previously  received, 
or  unless  he  caught  him  mflagrante  delictu.  In  taking  information,  he  was  bound  to  note  as 
well  those  points  which  made  for  the  persons  as  those  which  supported  the  charge  against  him, 
and  after  trial,  he  was  to  see  to  the  faithful  and  proper  execution  of  the  sentence,  pronounced  by 
the  judges,  who,  in  indictments  carrying  with  them  loss  of  life  and  property,  were  not  to  be  less  than 
five  in  number.  He  was,  moreover,  specially  obliged  to  attend  to  the  commissions  arriving  from 
the  company's  outposts,  and  to  vessels  arriving  from  or  leaving  for  Holland,  to  inspect  their 
papers,  and  superintend  the  loading  and  discharging  of  the  cargoes,  so  that  smuggling  might  be 
prevented  ;  and  all  goods  introduced,  except  in  accordance  to  the  company's  regulations,  were  at 
once  to  be  confiscated.  He  was  to  transmit  to  the  directors  in  Holland,  copies  of  all  information 
taken  by  him,  as  well  as  of  all  sentences  pronounced  by  the  court,  and  no  person  was  to  be  kept 
long  in  prison,  at  the  expense  of  the  company,  without  special  cause,  but  all  were  to  be  prosecuted 
as  expeditiously  as  possible  before  the  director  and  council.  *  *  *  He  was  strictly  forbidden  to 
accept  presents  or  gifts  from  any  person  whatsoever,  and  had  to  content  himself  with  the  civil 
fines  and  penalties  adjudged  to  him,  and  such  part  of  the  criminal  fines  and  confiscated  wages  of 
the  company's  servants  as  the  director  and  council,  after  prosecution,  might  allow.  He  was  not  to 
have  any  part,  however,  of  captured  prizes  or  confiscated  goods. 

3  Mr.  Brodhead  informed  the  writer  that  when,  in  pursuance  of  an  act  of  the  legislature,  he 
was  sent  to  Holland  in  1841,  to  collect  information  respecting  our  early  colonial  history,  he  found 
that  the  voluminous  archives  of  the  Dutch  West  India  Company  had  been  sold  but  a  few  years 
before  his  arrival,  as  waste  paper.  Had  the  legislature  acted  upon  the  suggestion  of  Governor 
Clinton,  in  1816,  the  records  of  this  company,  covering  the  whole  period  of  the  Dutch  dynasty,  and 
including  all  the  private  correspondence  between  the  directors  in  Amsterdam  and  their  agents  in 
New  Netherland,  would,  upon  request,  have  been  willingly  presented  to  the  state,  by  the  Dutch 
government  The  sale  had  been  so  recent,  that  Mr.  B.  was  enabled  to  discover  some  of  the  "pur- 
chasers ;  but  he  found  in  the  process  of  sale  and  resale,  that  the  papers  had  passed  into  the  hands 
of  innumerable  small  dealers  in  the  Dutch  metropolis,  and  had  been  used  as  wrappers  for  mer- 
chandise, and  that  the  great  bulk  of  them  had  been  scattered  and  appropriated  to  similar  uses,  along 
both  banks  of  the  Khine.  In  the  indefatigable  search  which  he  instituted,  he  was  enabled  to  res- 
cue some  fragments,  but  the  amount  obtained  was  very  trifling. 


9  HISTORY   OF   THE   COURT   AND   OF   THE 

clage,  was  a  doctor  of  laws,  and  a  man  of  ability  ;  and  as  long  as  he  continued  to 
act,  it  may  fairly  be  presumed,  that  the  management  of  judicial  matters  was  un- 
der his  charge.  In  1630,  extensive  grants  of  lands  in  New  Netherland  were  made 
by  the  West  India  Company,  to  certain  patroons,  who  were  invested  with  the  feudal 
privileges  of  manorial  lords.  They  were  authorized  to  erect  courts  of  justice,  and 
courts  known  as  the  patroons'  courts  were  accordingly  established,  exercising  un- 
limited civil  and  criminal  jurisdiction  within  the  patroons'  territory.  In  these  tri- 
bunals the  patroon  presided  in  person,  or  by  deputy.  He  was  clothed  with  the 
power  of  life  and  death,  and  could  decide  all  civil  suits  arising  within  his  jurisdic- 
tion, subject — where  he  rendered  judgment  for  a  sum  exceeding  fifty  guilders — to  an 
appeal  to  the  director  general  and  council  of  New  Amsterdam.  This  right  of  appeal 
was  reserved  by  the  original  charter,  under  which  the  patroons  held,  but  it  was 
practically  defeated  by  exacting  from  the  tenants,  before  they  came  upon  the  manor, 
a  condition  that  they  would  in  no  case  appeal  from  the  judgment  of  the  manorial  court.1 
In  1638,  William  Kieft  was  appointed  governor.  This  governor  was  a  grasping,  arbi- 
trary, narrow-minded  man,  full  of  his  own  importance,  with  a  restless  activity,  that 
was  never  turned  in  any  right  direction,  or  applied  to  the  accomplishment  of  any  wise 
purpose.  During  the  nine  years  that  he  misgoverned  the  colony,  he  retained  in  his 
hands  the  sole  administration  of  justice.  In  obedience  to  his  instructions,  it  was 
necessary  that  he  should  keep  up  the  form  of  a  council,  but  that  he  might  enjoy  ex- 
clusive control,  he  reduced  it  to  one  member,  reserving  two  votes  to  himself.2  In 
1640,  a  charter  of  exemptions  and  privileges,  designed  to  encourage  emigration,  was 
adopted  by  the  College  of  Nineteen,  in  which  it  was  declared  that  the  governor  and 
council  should  decide  all  questions  respecting  the  rights  of  the  company,  and  all 
complaints,  whether  by  foreigners  or  inhabitants  of  the  province;  that  they  should 
act  as  an  orphan's  and  surrogate's  court,  judge  in  criminal  and  religious  affairs,  and 
administer  law  generally.  In  conformity  with  the  charter,  Kieft  directed  that  the 
council  should  sit  every  Thursday,  as  a  court  of  justice,  for  "  the  hearing  and  adju- 
dication of  all  civil  and  criminal  processes,  and  for  the  redress  of  all  grievances  of 
which  any  one  might  have  to  complain  ;"  and  he  established  certain  rules  for  securing 
the  attendance  of  parties,  and  for  the  general  conduct  of  business.3  In  a  court  thus 
constituted,  guided  and  controlled  by  a  man  vain,  rapacious  and  vindictive,  it  may 
readily  be  imagined  in  what  way  justice  was  administered.  He  enacted  laws,  levied 
fines,  or  inflicted  penalties  according  to  his  will.  The  schout  fiscals,  of  whom  there 
were  two  during  his  governorship,  Ulrich  Lupold  and  Cornelius  Vander  Huygens,  were 
occasionally  invited  to  be  present  at  the  sittings  of  the  council,  but  neither  they  nor 
his  counsellor,  Doctor  Johannes  La  Montague,  a  learned  Huguenot  physician,  ap- 
peared to  have  had  much  weight  with  him.  Ever  involved  in  trouble,  either 
with  the  natives  or  with  the  colonists,  he  was  constantly  inflicting  fines,  confiscations 
and  banishments  ;  and  though  an  appeal  lay  from  his  judicial  decisions  to  the  cham- 
ber of  Amsterdam,  he  effectually  cut  it  off,  by  subjecting  to  fine  or  imprisonment 
any  one  who  attempted  to  resort  to  it.4  Such  an  administration  was  fruitful  at  least 


1  Brodhead,  304. 

2  Brodhead,  327. 

s  1  O'Call.  184.    Brodhead,  277. 

4  Biker's  Annals  of  Newtown,  23. 

Breeden  Raedt,  (Broad  Advice,)  printed  at  Antwerp,  1650,  and  attributed  to  Corneliua  Melyn, 


JUDICIAL   ORGANIZATION   OF  THE   STATE. 


of  one  result.  It  stirred  up  the  colonists  to  demand  the  establishment  of  judicial 
and  municipal  tribunals,  similar  to  those  which  they  had  enjoyed  in  Holland.  There 
had  existed  in  every  town  and  village  in  Holland,  for  more  than  a  century,  a  local 
tribunal  of  a  highly  popular  character.  It  united  the  twofold  functions  of  a  court  of 
j  ustice  and  of  a  municipal  government,  and  consisted  of  a  bench  of  magistrates,  de- 
nominated burgomaster  and  schepens,  with  whom  were  associated  a  schout,  whose 
especial  duty  it  was  to  prosecute  all  offenders  before  the  court,  and  to  carry  into 
execution  its  resolves  or  decreed.  The  burgomaster  was  a  kind  of  mayor.  The 
schepen  resembled  an  alderman,  and  the  schout  performed  the  duties  which,  under 
our  system,  are  respectively  assigned  to  sheriffs  and  district  attorneys.  The  princi- 
ple of  popular  representation  was  recognized  in  the  composition  of  this  body.  The 
mode  of  appointment  was  not  uniform  throughout  Holland  ;  but  generally  the  inhab- 
itants of  the  town  who  were  possessed  of  a  certain  property  qualification,  assembled 
annually  in  a  town  council  or  "  Vroedschap"  and  elected  eight  or  nine  " good  men," 
and  this  representative  body  chose  the  burgomaster  and  schepens.  The  schout, 
under  the  feudal  law,  was  appointed  by  the  count  or  manorial  lord,  though  in  certain 
places,  as  in  the  city  of  Amsterdam,  he  was  chosen  by  the  burgomaster  and  sche- 
pens.1 

Kieft  wished  to  go  to  war  with  the  Indians,  but,  unwilling  to  take  the  entire  re- 
sponsibility of  such  a  step,  he  deemed  it  prudent  to  call  the  co'mmunity  together 
and  submit  the  question  to  them.  The  heads  of  families  met,  and  according  to  the 
custom  of  Holland,  selected  twelve  men  to  represent  them.  This  representative 
body  assented  to  the  war ;  but,  at  the  same  time,  presented  a  memorial  to  the  gov- 
ernor, demanding,  among  other  reforms,  the  establishment  of  courts  of  justice  simi- 
lar to  those  which  existed  in  the  towns  and  villages  of  Holland.2  This  privilege 
Kieft  felt  no  disposition  to  grant,  and  after  evading  the  request  for  some  time,  he 
finally  got  rid  of  it,  by  dissolving  the  popular  body.  Two  years  later,  however,  having* 
by  his  rashness  and  folly,  brought  the  colony  to  the  brink  of  ruin,  he  found  it  necessary 
again  to  convoke  the  community.  They  met,  as  before,  and  selected  "  eight  men"  to 
advise  upon  the  state  of  affairs.  This  second  representative  council  did  not  trouble 
Kieft  with  any  further  requests ;  but  they  addressed  an  earnest  memorial  to  the  College 
of  Nineteen,  and  to  the  states  general,  describing  the  condition  of  the  colony,  and  de- 
manding a  new  governor,  and  the  establishment,  in  New  Amsterdam,  of  a  burgher 
government,  according  to  the  custom  and  usage  of  Holland ;  a  request  that  produced 
no  other  effect  but  the  recall  of  Kieft  and  the  appointment  of  Stuy  vesant.3 


president  of  the  "  board  of  eight  men."  This  rare  tract  has  been  translated  by  Henry  C.  Murphy, 
Esq.,  and  a  few  copies  have  been  printed  for  private  circulation,  by  James  Lennox,  Esq. 
u  Vertoogh,  Van  N.  N.,  printed  at  the  Hague,  1649,  and  attributed  to  Adrian  Van  der  Donck. 
This  has  also  been  translated  by  Mr.  Murphy,  and  printed,  together  with  the  Breeden  Eaedt,  by 
Mr.  Lennox,  and  by  the  N.  Y.  Hist  Soc.  2  Coll.  2d  series,  251.  Brodhead,  277.  A  translation 
will  also  be  found  in  the  Holland  documents,  iv.  74. 

1  Esprit  Origine  et  Progress  des  Institutions  Judiciaries  des  principaux  pays  de  1'Europe,  par 
J.  D.  Mycr,  Paris,  1823;  tome  iii.,  livre  5,  coup  d'oiel,  sur  1'etat,  politique  des  Pays  Bas.  chap.  11, 
253,  chap.  14,  387.  Placards  of  Hollande,  vol.  ii.  695.  Van  Leu  wen's  Roman  Dutch  Law,  book  1 . 
chap.  ii.  §§19,20,  21.  Vander  Linden's  Institutes  of  Holland,  parti,  book  8,  chap.  1.  O'Call.  i. 
891 ;  ii.  210.  Brodhead,  453. 

a  Brodhead,  3 26. 

3  Brodhead,  364. 


8  HISTORY    OF   THE   COURT   AND   OF   THE 

Peter  Stuyvesant  came  out  as  governor  in  1647.  Van  Dinclage,  who  had  acted 
as  schout  fiscal  under  Van  Twiller,  came  with  him,  in  the  capacity  of  vice  director, 
and  Hendrick  Van  Dyck  as  schout  fiscal.  Immediately  after  his  arrival,  Stuyve- 
sant established  a  court  of  justice,  of  which  Van  Dinclage  was  made  the  presiding 
judge,  having  associated  with  him,  occasionally,  others  of  the  company's  officers 
The  new  tribunal  was  empowered  to  decide  "  all  cases  whatsoever,"  subject  only  to 
the  restriction  of  asking  the  opinion  of  the  governor  upon  all  momentous  questions 
who  reserved  to  himself  the  privilege,  which  he  frequently  exercised,  of  presiding 
in  the  court,  whenever  he  thought  proper  to  do  so.1 

The  desire  for  a  popular  form  of  government  became  so  strong  after  Stuyvesant's 
arrival  that  he  found  it  necessary  to  make  some  concession.  He  allowed  the  com. 
monalty  to  elect  eighteen  persons,  from  whom  he  selected  nine,  as  a  permanent  body 
to  advise  and  assist  in  public  affairs.  This  body,  who  were  known  as  the  board  of 
the  nine  men,  had  certain  judicial  powers  conferred  upon  them.  Three  of  their  num- 
ber attended  in  rotation  upon  every  court  day,  to  whom  civil  cases  were  referred  as 
arbitrators,  and  their  decision  was  binding  upon  the  parties,  though  an  appeal  lay  to 
the  governor  and  council,  upon  the  payment  of  one  pound  Flemish.  These  tribunals, 
with  the  manorial  courts  before  referred  to,  constituted  the  judicial  organization  of 
the  colony  for  seven  years  afterwards. 

The  government  of  Stuyvesant  but  increased  the  popular  discontent.  Though 
a  man  of  capacity  and  integrity,  he  was  unfitted  for  the  place  assigned  him,  or  his 
duty  as  the  careful  guardian  of  the  pecuniary  interests  of  a  commercial  corporation, 
was  inconsistent  with  the  just  and  politic  rule  of  a  people  like  the  colonists,  who  had 
their  own  views  as  to  the  manner  in  which  a  community  should  be  governed.  It 
was  natural  that  they  should  desire  to  live  under  institutions  to  which  they  had 
been  accustomed  in  Holland,  and  which,  whatever  might  be  their  advantages  or  de- 
fects, had  to  them  the  merit  of  nationality,  and  were  associated  with  their  earliest 
recollections.  This  Stuyvesant  did  not,  or  would  not,  see.  Strongly  conservative 
himself  by  nature,  and  long  used  to  military  rule,  he  saw  in  a  demand  so  just  and 
reasonable,  nothing  but  a  desire  to  break  loose  from  the  restraints  of  lawful  authority. 
Though  not  an  unjust  man,  he  felt  himself  warranted  in  resorting  to  any  means  to 
crush  every  thing  in  the  shape  of  popular  encroachment,  and,  as  he  was  both  prompt 
and  energetic,  his  government  became  insufferably  oppressive.  Before  the  end  of 
two  years  he  was  in  open  collision,  not  only  with  the  board  of  nine  men,  but  with 
the  schout  fiscal,  Van  Dyck,  and  the  vice  director,  Van  Dinclage,  an  enlightened  and 
learned  man,  and  the  most  influential  member  of  his  council.  The  council  he  was 
enabled  to  control,  but  not  so  with  the  popular  body.  In  one  of  its  members, 
Adrian  Van  der  Donck,  he  had  to  cope  with  a  man  whose  ability  and  energy  was 
equal  to  his  own.  Instigated  by  Van  der  Donck,  the  board  of  nine  men  resolved  to 
send  a  delegation  to  Holland,  but  they  had  no  sooner  decided  upon  this  step  than 
Stuyvesant  arrested  its  projector,  seized  his  papers,  and  procured  a  decree  of  the 
council  removing  him  from  his  position  as  one  of  the  popular  representatives.  But 
this  violent  and  arbitrary  measure  did  not  produce  the  effect  expected.  The 
nine  men  met  together,  a  spirited  remonstrance  was  prepared  to  the  states  general, 


1  Breeden  Raedt,  extracts  in  4  Doc.  Hist  of  N.T.  69.    Albany  Kec.  20,  28,  29,  38,  56  to  61. 
2  O'CalL  24  to  81.    Brodhead,  467,  523, 532. 


JUDICIAL  ORGANIZATION  OF  THE  STATE.  9 

and  three  of  the  number,  of  whom  Van  der  Donck  was  one,  went  with  it  as  a  depu- 
tation to  Holland, 

This  mission  was  so  far  successful,  that  in  1650,  a  provisional  order  was  made  by 
the  states  general,  which,  among  other  things,  decreed,  that  a  court  of  justice  should 
be  erected  in  New  Netherland,  and  that  a  burgher  government  should  be  established 
in  New  Amsterdam,  to  consist  of  two  burgomasters,  five  schepens  and  a  schout,  and 
that  in  the  mean  time,  or  for  three  years,  the  nine  men  should  continue  to  exercise  judi- 
cial powers  in  the  trial  of  civil  causes.1  This  order  was  resisted  by  the  Amsterdam 
chamber  as  a  violation  of  the  privileges  granted  by  their  charter,  and  Stuy  vesant,  no 
doubt  under  instructions  from  them,  refused  to  obey  it.2  When  it  was  known  at 
New  Amsterdam  that  Stuyvesant  would  not  comply  with  the  order,  the  nine  men 
again  appealed  to  the  home  government,  and  Van  der  Douck,  who  had  remained  in 
Holland,  appeared  as  their  advocate  before  the  states  general.  A  long  struggle 
ensued,  during  which  Stuyvesant  grew  more  violent  and  unreasonable.  He  impris- 
oned Van  Dinclage  for  uniting  with  Van  der  Donck  in  a  protest  to  the  states  gene- 
ral, dismissed  the  schout  fiscal,  Van  Dyck,  from  office,  for  co-operating  with  the  nine 
men,  and  followed  up  these  arbitrary  and  illegal  acts,  by  equally  violent  measures 
against  other  leaders  of  the  popular  movement.3  The  Amsterdam  chamber,  who 
regarded  the  establishment  of  a  burgher  court  as  likely  to  prove  detrimental  to  the  in- 
terests of  their  commercial  monopoly,  employed  every  means  to  counteract  the  efforts 
of  Van  der  Donck ;  but  after  maintaining  the  contest  for  two  years,' they  at  last  thought 
it  prudent  to  yield,  and  signified  to  Stuyvesant  their  assent  to  the  wishes  of  the 
colonists.  The  inhabitants  of  New  Amsterdam  were  to  be  allowed  to  elect  a 
schout,  two  burgomasters  and  five  schepens,  "  as  much  as  possible  according  to  the 
custom  of  old  Amsterdam,"  and  the  magistrates,  thus  elected,  were  to  compose  a 
municipal  court  of  justice,  subject  to  the  right  of  appeal  to  the  supreme  court  of  the 
province.  "  We  have  resolved,"  they  wrote  to  Stuyvesant,  "  to  permit  you  hereby  to 
erect  a  court  of  justice,  (een  banck  Van  Justitie,)  formed  as  much  as  possible  after  the 
custom  of  this  city ;  to  which  end,  printed  copies  relative  to  all  the  law  courts  here, 
and  their  whole  government,  are  transmitted.  And  we  presume  that  it  will  be  suffi- 
cient, at  first,  to  choose  one  schout,  two  burgomasters  and  five  schepens,  from  all  of 
whose  judgment  an  appeal  shall  lie  to  the  supreme  council,  where  definite  judg- 
ment shall  be  pronounced."4  It  was  evident,  from  the  order  of  the  states  general, 
that  these  officers  were  to  be  elected  by  the  commonalty,  as  was  customary  in  the 
cities,  towns  and  villages  of  Holland ;  and  such  would  seem  to  be  the  direction  in  the 
dispatch  of  the  Amsterdam  chamber.  The  language  of  the  dispatch  was,  perhaps, 
a  little  ambiguous,  and  Stuyvesant,  putting  the  construction  upon  it  that  conformed 
most  with  his  own  views,  and  which,  if  erroneous,  he  perhaps  felt  would  not  be  un- 
palatable to  his  employers,  resolved  to  appoint  the  new  magistrates  himself.  He 
not  only  determined  thus  to  keep  the  power  in  his  own  hands,  but  he  practically 
defeated  the  provision  that  had  been  made  for  a  city  schout,  by  appointing  to  that 
office  Cornelius  Van  Tienhoven,  a  man  of  depraved  and  dissolute  life,  exceedingly 
obnoxious  to  the  colonists,  whose  only  recommendation  was  the  ability  he  had 


1  Brodhead,  514. 

2  2  O'Call,  210.    Brodhead,  540.    2  Doc.  History  of  N.  T. 
s  Brodhead,  525,  532. 

*  1  N.Y.  Doe.  History,  3S7. 


10  HISTORY   OF  THE   COUET   AND   OF   THE 

- 

shown  in  carrying  out  the  measures  of  his  headstrong  and  arbitrary  superior.  By  this 
means,  the  two  offices  of  city  schout  and  schout  fiscal  were  united  in  the  same  person. 
Stuyvesant  even  went  so  far  as  to  refuse  to  allow  the  new  magistrates  to  appoint 
their  own  clerk,  though  it  had  been  the  usage  in  Amsterdam  from  the  time  that  that 
city  had  had  a  burgomaster ;  and  as  a  crowning  act,  he  informed  the  new  tribunal, 
that  its  establishment  or  the  scope  of  its  authority  did  not  in  the  slightest  degree 
diminish  the  power  of  himself  and  his  council,  to  pass  whatever  laws  or  ordinances 
they  pleased,  for  the  municipal  government  of  the  city.1 

On  the  second  of  February,  1(553,  he  issued  a  proclamation,  appointing  as  burgo- 
masters, Arent  Van  Hatten  and  Martin  Krieger,  and  as  schepens,  Paulus  L.  Vander 
Grist,  Maximillian  Van  Gheel,  Allard  Anthony,  Peter  W.  Cowenhoven  and  William 
Beekman.  Five  days  afterwards,  the  newly  appointed  magistrates  assembled; 
Van  Tienhoven,  the  schout  fiscal,  attending  in  his  additional  capacity  of  city  schout, 
•with  Jacob  Kip,  who  had  been  appointed  secretary  or  town  clerk,  a  station  he  con- 
tinued to  fill  for  many  years  afterwards.  No  business  was  transacted,  other  than 
to  give  notice  that  the  court  would  meet  for  "  the  hearing  and  determining  of 
all  disputes  between  parties,  as  far  as  practicable,  in  the  building  heretofore  called  the 
City  Tavern,  now  the  Stadt  House,  (City  Hall,)  on  every  Monday  morning,  at  9 
o'clock."  The  Stadt  House  not  being  ready  on  the  day  appointed,  the  next  meeting 
took  place  four  days  afterwards  at  the  Fort,  where  the  court  was  duly  organized  for 
the  dispatch  of  business,  and  the  proceedings  opened  with  prayer ;  the  following 
eloquent  extract  from  which  will  show  the  sense  entertained  by  these  new  magis- 
trates of  the  duties  and  obligations  of  the  judicial  office  : 

"We  beseech  thee,  Oh !  Fountain  of  all  good  gifts,  qualify  us  by  thy  grace,  that  we 
may,  with  fidelity  and  righteousness,  serve  in  our  respective  offices.  To  this  end 
enlighten  our  darkened  understandings,  that  we  may  be  able  to  distinguish  the  right 
from  the  wrong,  the  truth  from  falsehood,  and  that  we  may  give  pure  and  uncor- 
rupted  decisions,  having  an  eye  upon  thy  Word,  a  sure  guide,  giving  to  the  simple 
wisdom  and  knowledge.  Let  thy  law  be  a  lamp  unto  our  feet  and  a  light  unto  our 
paths,  that  we  may  never  turn  away  from  righteousness.  Deeply  impress  on  all  our 
minds  that  we  are  accountable  not  to  man,  but  to  God,  who  seeth  and  heareth  all 
things.  Let  all  respect  of  persons  be  far  removed  from  us,  that  we  may  award 
justice  unto  the  rich,  and  unto  the  poor,  unto  friends  and  enemies ;  to  residents  and 
to  strangers,  according  to  the  law  of  truth,  and  grant  that  not  one  of  us,  in  any 
instance,  may  swerve  therefrom ;  and  as  gifts  do  blind  the  eyes  of  the  wise,  and 
destroy  the  heart,  keep,  therefore,  our  hearts  in  judgment.  Grant  unto  us,  also,  that 
we  may  not  rashly  prejudge  any  one,  but  that  we  patiently  hear  all  parties,  and 
give  them  time  and  opportunity  for  defending  themselves ;  in  all  things  looking  up 
to  Thee  and  to  thy  Word  for  counsel  and  direction.2 

It  was  the  intention  that  the  municipal  government  conceded  to  New  Amsterdam 
should  conform,  as  far  as  practicable,  to  that  of  the  parent  city.  How  essentially 
Stuyvesant  departed  from  this  in  the  outset,  has  been  already  shown,  and  his 
resolving  that  the  burgher  government  did  not  diminish  the  right  of  himself  and  his 
council  to  regulate  municipal  affairs,  left  the  precise  powers  of  the  new  tribunal 
very  indefinite  and  uncertain.  It  led,  at  the  commencement,  to  an  organization  of 
the  municipal  government,  in  many  respects  different  from  that  of  Amsterdam,  and 
to  great  unwillingness  at  first,  on  the  part  of  the  burgomasters  and  schepens,  to 


1  N.  Y.  Eec.  of  Burgomasters  and  Schepens,  vol.  i.    Brodhead,  543. 
8  N.  Y.  Eec.  of  Burg,  and  Schep.  i.  3. 


JUDICIAL   OKGANIZATION   OF   THE   STATE.  11 

interfere  at  all  in  municipal  matters.  In  Amsterdam  there  were  four  burgomasters, 
each  of  whom  attended  three  months  of  the  year,  in  rotation,  at  the  city  hall,  for  the 
despatch  of  public  business,  and  the  schepens,  who  were  nine  in  number,  held  the 
regular  court  of  justice,  having  civil  and  criminal  jurisdiction,  which  was  almost  un- 
limited. The  duties  of  the  schepens  were  especially  judicial,  while  those  of  the 
schout  and  the  burgomasters  were  chiefly  executive,  and  the  three  bodies,  when 
assembled  together,  constituted  a  "  college,"  for  the  enactment  of  municipal  ordinances 
and  laws,  under  the  title  of  "  the  lords  of  the  court  of  the  city  of  Amsterdam." 
There  was  also  a  permanent  council,  composed  of  thirty  six  members,  the  nature  of 
which  need  not  be  explained.1 

Though  this  division  of  duties  and  labors  was  highly  essential  in  a  city  of  the  mag- 
nitude of  the  Dutch  commercial  metropolis,  it  was  not  so  necessary  in  a  small  com- 
munity, like  that  of  New  Amsterdam,  which,  at  the  period  in  question,  could  not 
have  embraced  much  over  seven  hundred  inhabitants.2  From  this  cause,  perhaps,  as 
well  as  from  the  uncertainty  respecting  the  precise  distribution  or  extent  of  their 
duties,  occasioned  by  the  notice  they  had  received  from  Stuyvesant,  the  newly 
appointed  officers  assembled  together  as  one  body,  and  in  that  united  capacity  con- 
tinued thereafter  to  discharge  legislative,  judicial  and  executive  functions.  In  the 
towns  and  villages  of  Holland,  the  schout  was  the  chief  officer  of  the  board.  He 
convoked  the  court,  and  presided  at  the  head  of  it,  but  without  taking  any  part  in 
its  proceedings,  other  than  in  collecting  the  votes.  His  position  was  somewhat 
analogous  to  that  of  the  speaker  or  the  president  of  a  legislative  assembly,  except 
that  he  had  no  vote,  though  he  might  express  his  opinion,  and  he  was  obliged  to  quit 
the  bench  when  he  acted  as  prosecuting  officer,  the  oldest  burgomaster  then  pre- 
siding in  his  stead.3  In  New  Amsterdam,  however,  Arent  Van  Hatten,  being  the 
first  named  as  burgomaster,  assumed  the  presidency  of  the  court,4  and  after  he 
retired  from  office,  the  eldest  burgomaster  continued  to  act  in  that  capacity  until 
1656,5  when  Stuyvesant  ordered  that  the  presidency  should  be  changed  every  three 
months,  which  continued  until  1660,  in  which  year  the  colonists  obtained  what  they 
had  long  petitioned  for,  a  separation  of  the  office  of  city  schout  from  that  of  the 
schout  fiscal.  This  separation  had  in  fact  been  made  six  years  before,  and  a  city 
schout  appointed  by  the  Amsterdam  chamber,  but  this  officer,  Jochem  T.  Kuyter, 
having  been  killed  in  a  collision  with  the  Icdians,  before  he  could  enter  upon  the 
duties  of  his  office,  Stuyvesant  retained  the  schout  fiscal,  Van  Tienhoven,  in  the  dis- 
charge of  the  duties  of  city  schout,  and  persisted,  against  the  urgent  remonstrance 
of  the  inhabitants  in  continuing  him  and  the  succeeding  schout  fiscal,  Nicasius  de 
Sille,  as  city  schout,  until  the  Amsterdam  chamber  finally  appointed  to  the  post 
Peter  Tonneman,  who  bad  formerly  been  schout  of  a  district  of  Dutch  towns  on  Long 
Island.  Tonneman  received  his  appointment  in  Holland,  and  when  he  came  out,  he 
insisted  upon  his  right  to  the  presidency  of  the  court.  In  this  he  was  supported  by 


1  J.  "Wagenaar,  Amsterdamsehe  Geschiedenissen,  1T40.    Meyer's  Institutions  Judiciaries,  tome 
iii.  livre  5,  chap.  11,  253.     Ordinances  of  Amsterdam,  vol.  ii.  p.  695.    Vander  Linden,  379.    2 
O'Call.  210. 

2  Valentine's  History  of  the  City  of  New  York,  p.  53.    Brodhead,  548. 

3  Van  Leuwen,  book  1.  chap.  1.  sec.  21.    Meyer's  Institutions  Judiciaries,  tome  iii.  livre  5,  chap. 
11,253.    Vander  Linden,  377.    Brodhead,  674. 

4  N.  T.  Eec.  of  Burg,  and  Schep.  i.  4.  6  N.  T.  Eec.  of  Burg,  and  Schep.  ii.  488. 


12  HISTORY   OF   THE   COURT   AND   OF   THE 

Stuy  vesant,  who  went  personally  before  the  burgomasters  and  schepens,  and  insisted 
not  only  that  Tonneman  should  sit  at  the  head  of  the  court,  but  that  he  should  have 
a  vote  in  all  matters  in  which  he  was  not  a  party,  a  privilege  never  granted  to  the 
schouts  in  Holland.  The  burgomasters  and  schepens  resisted,  but  after  a  long  and 
angry  discussion,  it  was  finally  agreed  that  Tonneman  should  have  what  he  claimed, 
until  the  question  should  be  determined  by  the  "Lords  Majores,"  in  Holland.  It 
does  not  appear  whether  any  further  action  was  had  in  the  matter,  but  the  name  of 
Tonneman  was  continued  thereafter  upon  the  records  as  the  chief  or  presiding 
officer.1  In  1657,  that  branch  of  municipal  affairs  which  especially  required  the 
discharge  of  executive  duties,  had  increased  so  largely,  that  the  burgomasters 
organized  a  separate  court,  which  met  every  Thursday,  to  dispose  of  it.2  In  view 
of  the  serious  encroachment  made  upon  their  time  by  the  accumulation  of  duties,  or 
as  they  expressed  it,  the  impossibility  of  attending  to  their  private  affairs,  the  burgo- 
masters petitioned  Stuyvesant  to  be  released  thereafter  from  attending  the  burgher 
court,  but  he  refused  to  grant  it,  and  the  court  continued  in  the  discharge  of  mixed  legis- 
lative and  judicial  functions  as  long  as  the  Dutch  held  possession  of  the  province. 

The  proceedings  of  this  tribunal,  or,  as  it  was  denominated,  "  the  worshipful  court 
of  the  schout  burgomaster  and  schepens,"  were  all  recorded  by  their  clerk  or  secre- 
tary ;  and  as  every  thing  that  took  place  before  it,  the  nature  of  the  claim,  or  of  the 
offence,  the  statements  of  the  parties,  the  proof  and  the  decision  of  the  court,  with 
the  reasons  assigned  for  it,  were  carefully  noted  and  written  down,  these  records 
supply  a  full  account  of  the  whole  course  of  its  proceedings,  and  furnish  an  interest- 
ing exposition  of  the  habits  and  manners  of  the  people.  Upon  perusing  them,  it  is 
impossible  not  to  be  struck  with  the  comprehensive  knowledge  they  display  of  the 
principles  of  jurisprudence,  and  with  the  directness  and  simplicity  with  which  legal 
investigations  were  conducted.  In  fact,  as  a  means  of  ascertaining  truth,  and  of  doing 
substantial  justice,  their  mode  of  proceeding  was  infinitely  superior  to  the  more 
technical  and  artificial  system  introduced  by  their  English  successors,  None  of  these 
magistrates  were  of  the  legal  profession.  They  were  all  engaged  in  agricultural, 
trading  or  other  pursuits,  and  yet  they  appear  to  have  been  well  versed  in  the  Dutch 
law,  and  to  have  been  thoroughly  acquainted  with  the  commercial  usages,  customs  and 
municipal  regulations  of  the  city  of  Amsterdam.  This  is  the  more  remarkable,  as  a 
knowledge  of  the  Dutch  law  at  that  period  was  by  no  means  of  easy  acquisition. 
Though  the  principles  and  practice  of  the  civil  law  prevailed  in  Holland,  it  was 
greatly  modified  by  ancient  usages  ;  some  of  them  of  feudal  origin,  others  the  result 
of  free  institutions,  which  had  existed  from  the  earliest  period  ;  and  it  had  engrafted 
upon  it  a  number  of  public  regulations  or  ordinances,  emanating  from  the  different 
provinces,  as  distinct  and  partly  independent  sovereignties,  which  had  originated 
either  as  feudal  privileges  or  sprung  up  during  Spanish  domination,  or  were  the 
result  of  the  long  struggle  and  many  political  changes  which  the  low  countries  had 
passed  through  before  the  general  establishment  of  free  institutions.  In  every  town 
and  village  in  Holland,  moreover,  there  existed  usages  and  customs  peculiar  to 
the  place,  which  had  the  force  of  law,  and  were  not  only  different  in  different 
towns,  but  frequently  directly  opposite.  The  Dutch  law,  in  fact,  was  then  a  kind  of 
irregular  mosaic,  in  which  might  be  found  all  the  principles  as  well  as  the  details  of 


*  N.  T.  Eec.  of  Burg,  and  Schep.  v.  414,  484. 

2  N.  Y.  Eec.  of  Burg,  and  Schep.  Ordinances  of  Burgomasters, 


JUDICIAL  ORGANIZATION  OF  THE   STATE. 


a  most  enlightened  system  of  jurisprudence  ;  but  in  a  form  so  confused  as  to  make 
it  exceedingly  difficult  to  master  it.1  That  these  magistrates  should  have  had  any 
general  or  practical  acquaintance  with  such  a  system  at  all,  was  scarcely  to  have 
been  expected  ;  but  that  they  had,  is  apparent,  not  only  from  the  manner  in  which 
they  disposed  of  the  ordinary  controversies  that  came  before  them,  but  in  their  treat- 
ment of  difficult  questions  as  to  the  rights  of  strangers,  their  familiarity  with  the 
complicated  laws  of  inheritance,  and  the  knowledge  they  displayed  of  the  maritime 
law  while  sitting  as  a  court  of  admiralty.  The  Amsterdam  chamber  sent  out  to 
them  the  necessary  books  to  guide  them,  as  to  the  practices  of  the  courts  of  Amster- 
dam, and  when  the  province  passed  into  the  hands  of  the  English,  there  was  attached 
to  the  court  a  small  but  very  select  library  of  legal  works,  mainly  in  the  Dutch 
language.  There  were,  moreover,  men  educated  to  the  legal  profession,  in  the 
colony.  Van  Dinclage,  the  vice  director,  who  had  acted  as  schout  fiscal  for  Van  Twil- 
ler,  and  chief  judge  of  the  court  established  by  Stuyvesant,  was  a  doctor  of  laws, 
and  there  is  sufficient  known  respecting  him,  to  warrant  the  opinion  that  he  was  an 
able  and  accomplished  jurist.  Van  der  Donck  was  admitted  to  the  same  honorable 
degree  in  the  University  of  Ley  den,  and  was  afterwards  an  advocate  of  the  supreme 
court  of  Holland.2  The  schout  fiscal,  Nicasius  de  Sille,  who  acted  as  city  schout 
for  four  years,  is  stated  in  his  commission  from  the  Amsterdam  chamber  to  be  "  a 
man  well  versed  in  the  law."3  In  addition  to  these,  there  were,  several  notaries. 
Dirk  Van  Schellyne,  who  came  out  in  1641,  had  previously  practiced  at  the  Hague ; 
David  Provorst  discharged  the  duties  of  notary  for  some  years  before  Schellyne's 
arrival,4  and  there  was  another  notary  named  Matthias  de  Vos.5  Under  the  civil  law  as 
it  prevailed  in  Holland,  a  considerable  part  of  the  proceedings  in  a  cause,  if  it  was 
seriously  contested,  was  conducted  by  the  notary,  who  was  required,  at  least,  to  be 
well  versed  in  the  manner  of  carrying  on  legal  controversies ;  and  as  he  was  fre- 
quently consulted  by  suitors  for  advice  as  to  their  rights  and  liabilities,  he  was  gene- 
rally well  informed  and  capable  of  giving  it.8  Such  was  the  case  with  Van  Schel- 
lyne, who,  from  the  records  he  has  left,  was  evidently  an  experienced  and  skillful  prac- 
titioner. He  was  not  only  connected  with  the  court  in  the  discharge  of  his  duties  as 
notary,  but  he  was  appointed  by  it,  in  1665,  high  constable,  (conchergio.y  All  of  these 
men  must  have  had  more  or  less  to  do  with  establishing  the  mode  of  legal  proceeding, 
and  of  advising  and  guiding  the  magistrates.  Van  Schellyne  and  De  Sille  were  in 
constant  official  communication  with  them.  Van  Dinclage  must  have  brought  into 
use  the  forms  of  legal  procedure  in  the  court  over  which  he  had  presided,  and  Van 
der  Donck  was  one  of  the  chief  getters  up  of  the  new  tribunal ;  and  though  he  survived 


1  H.  Fagel  and  J.  C.  Yan  der  Hoop,  Dissert,  de  usu  Juris  Eomani  in  Hollandia  Hag,  1779.  F. 
Van  Mieris  Groot  Charterbock  der  Graaven  Yan  Holland,  Leid,  1753-4.  Deelen  Cau  en  Scheltua, 
PLACAAT  BOEK  Yan  de  Staaten  Generaal  Yan  Holland,  en  Yan  Zeelend,  9  Deelen,  edition  of 
1658.  Actes  des  Etats  G6n6raux  de  1600.  Eecuielles  et  mis  en  ordre,  par  M.  Gachard  Bruxelles, 
1849.  Oeuvres  deEaepsait,  tomeiii.  Des  Droit  des  Belgis  et  Gaulois.  Meyer's  Institutions  Judi- 
ciaries, tome  iii,  livre  5,  chap.  11. 

2  O'Call.  550. 

Brodhead,  561.    5  N.  Y.  Eec.  of  Burg,  and  Schep.  5. 

8  N.  Y.  Eec.  of  Burg,  and  Schep.  101. 

5  N.  Y.  Eec.  of  Burg,  and  Schep.  642. 

8.  Yan  Leuwen  Practyk  der  Notarissen,  Eott.  1742. 

N.  Y.  Eec.  of  Burg,  and  Schep.  ii.  642. 


HISTOEY   OF  THE   COURT   AND   OF   THE 

its  creation  but  two  years,  he  was  no  doubt  advised  with  and  consulted  in  respect  to 
its  organization,  and  as  to  the  mode  in  which  it  was  conducted.  We  find  him  in 
fact,  the  very  year  that  it  was  established,  claiming  its  protection  as  a  "  citizen  and 
burgher,"  against  the  menaces  of  Stuyvesaut.1  The  court  was  required,  in  all  its 
determinations,  to  regard  as  paramount  law,  all  regulations  established  by  or  instruc- 
tions received  from  the  chamber  of  Amsterdam  or  the  College  of  Nineteen,  for  the 
government  of  the  colony.  Next,  all  edicts  or  ordinances  duly  established  by  the 
governor  and  council ;  then  the  usages,  customs  or  laws  prevailing  in  the  city  of  Am- 
sterdam, and  where  they  furnished  no  guide,  the  law  of  the  fatherland,  by  which 
was  more  particularly  understood  the  ordinances  of  the  province  of  Holland  and  of 
the  states  general,  and  the  civil  law  as  it  prevailed  in  the  Netherlands,  or.  as  it  is 
denominated  by  jurists,  the  Roman  Dutch  Law. 

The  burgomaster  and  schepens  had  constantly  demanded  from  Stuyvesant  that 
they  should  be  allowed  to  nominate  a  double  number  of  persons,  from  whom  their 
successors  should  be  chosen,  as  a  partial  approximation  to  the  privileges  enjoyed  in 
the  Netherlands,  or,  as  they  expressed  it,  "  in  the  beloved  city  of  Amsterdam  ;' 2  but 
he  continued  the  old  magistrates,  merely  supplying  vacancies,  until  1656,  when  he 
consented,  with  the  proviso  that  the  old  magistrates  should  always  be  considered 
as  re-nominated — which  left  it  in  his  power  to  continue  them  precisely  as  he 
had  done  before.  The  condition  was  accepted,  and  the  nominations  made;  but 
Stuyvesant,  being  displeased  with  some  of  the  new  names,  continued  the  old 
magistrates,  merely  supplying  vacancies,  until  the  time  for  reappointment  came 
around,  in  1658,  when  he  at  last  gave  way,  and  selected,  from  a  double  list  of 
names  presented  to  him,  the  magistrates  who  were  to  serve.  The  burgomaster 
and  schepens  then  selected,  continued  in  office  until  1660,  when  a  new  nomination 
and  appointment  was  made  every  year,  in  the  month  of  February,3  which  was  con- 
tinued thereafter,  until  the  English  changed  the  organization  of  the  court.  All 
these  magistrates,  as  far  as  can  be  gathered,  were  men  of  intelligence,  of  inde- 
pendence, and,  with  one  or  two  exceptions,  of  high  moral  character,  evincing  in  the 
discharge  of  their  duties,  and  especially  in  those  of  a  judicial  nature,  that  unswerving 
adhesion  to  established  rules  and  customs,  that  sterling  good  sense,  and  strong 
love  of  justice,  which  constitutes  so  marked  a  feature  in  the  Dutch  national 
character. 

The  right  which  Stuyvesant  claimed,  of  interfering  in  the  administration  of  city 
matters,  appears  to  have  been  confined  to  what  related  to  the  general  regulation  of 
the  city's  affairs,  and  not  to  the  administration  of  justice  between  particular  indi- 
viduals, or  as  against  public  offenders.  Upon  the  former  matter,  he  and  the  burgo- 
master and  schepens  came  frequently  in  collision ;  and  he  sometimes  gave  vent  to 
his  anger  at  their  insolence  and  presumption,  by  a  public  proclamation,  in  which 
they  were  contemptuously  referred  to  as  "the  little  bench  of  justice;"4  but  he  seems 
to  have  abstained  from  any  interference  with  their  judicial  powers.  At  first  he  was 
disposed  to  limit  their  action  in  criminal  cases ;  but  finally  he  suffered  them  to  ex- 


i  N.  T.  Eec.  of  Burg,  and  Schep.  i.  321. 
a  New  Amsterdam  Eec.  359,  373,  375. 
3  Eec.  of  N.  Y.  Burgomasters  and  Schepens,  iv.  299. 

«  Documents  of  Stuyvesant's  Council  in  N.  Y.    Eecord  of  Burgomasters  and  Schepens,  26th  of 
February,  1654. 


JUDICIAL   ORGANIZATION   OF   THE   STATE.  15 

ercise  unlimited  criminal  and  civil  jurisdiction,  except  the  infliction  of  punishment  in 
capital  cases.    The  mode  of  proceeding  in  civil  cases  was  simple  and  summary. 
The  court  was  held  once  every  fortnight,  though  frequently  once  every  week,  upon  a 
stated  day.     Attached  to  the  court  was  an  officer,  known  as  the  court  messenger, 
who,  at  the  verbal  request  of  the  party  aggrieved,  summoned  the  adverse  party  to 
appear  at  the  next  court  day.     If  the  defendant  failed  to  appear,  he  incurred  the 
cost  of  the  summons,  lost  the  right  to  make  any  objection  to  the  jurisdiction  of  the 
court,  and  a  new  citation  was  issued.     If  he  failed  again,  he  incurred  additional 
costs,  lost  the  right  to  make  all  "  dilatory  exceptions,"  or  to  adjourn,  or  delay  the 
proceeding.     He  was  then  cited  for  the  third  time,  and  if  he  did  not  then  appear, 
the  court  proceeded  to  hear  the  case  and  give  judgment,  and  he  was  cut  off  from  all 
right  of  appeal  or  review.    But  if,  upon  hearing  the  plaintiff's  case,  the  court  deem- 
ed the  presence  of  the  defendant  essential,  they  might  issue  a  fourth  citation,  in 
the  nature  of  an  arrest,  and  compel  his  appearance.     Parties,  however,  usually  at- 
tended upon  the  first  citation.    The  plaintiff  stated  his  case,  and  the  defendant  made 
his  answer.     If  they  differed  in  a  fact  which   the  court  thought  material,  either 
party  might  be  put  to  an  oath  ;  and,  if  they  were  still  in  conflict,  the  court  might 
require  the  examination  of  witnesses,  and  the  matter  was  adjourned  until  the  next 
court  clay,  during  which  time   either  party  might  take  the  depositions  of  his  wit- 
nesses, before  a  notary,  or  the  court  might  require  that  the  witnesses  should  be  pro- 
duced, to  be  examined  orally  before  it,  at  the  adjourned  day,  under  oath.     But, 
most  generally,  the  matter  was  disposed  of  upon  the  first  hearing  of  the  parties, 
without  resorting  to  the  oath,  or  the  examination  of  witnesses.     If  it  was  intricate, 
or  it  was  difficult  to  get  at  the  truth,  it  was  the  constant  practice  to  refer  the  cause 
to  arbitrators,  who  were  always  instructed  to  bring  about  a  reconciliation  between 
the  parties,  if  they  could ;  and  this  was  not  confined  merely  to  cases  of  disputes 
about  accounts,   or  to  differences   growing  out  of  contracts,  but  it  extended  to 
nearly  every  kind  of  case  that  came   before   the   court.      The    arbitrators   were 
left  to   the  choice  of  the   litigants,   or   appointed   by   the   court,    or   one  of  the 
schepens  was  directed  to  take  the  matter  in  hand,  and  try  and  reconcile  the  con- 
testants.    If  no  reconciliation  could  be  effected,  or  the  parties  would  not  submit 
to  the  final  determination  or  conclusion  of  the  arbitrators,  the  dissatisfied   party 
might  again  bring  the  matter  before  the  court,  where  it  was  finally  disposed  of. 
These  references  were  frequent  upon  every  court  day.    In  fact,  the  chief  business  of 
this  tribunal  was,  in  acting  as  a  court  of  conciliation ;  and  it  is  worthy  of  remark, 
that  though  the  amount  involved  was  frequently  considerable,  or  the  matter  in  dis- 
pute highly  important,  that  appeals  to  the  court  from  the  decision  of  the  arbitrators 
were  exceedingly  rare.    Indeed,  the  first  appeal  to  be  found  upon  the  records  was 
brought  by  a  stranger.1 

There  was  a  more  formal  mode  of  proceeding,  if  parties  preferred  it.  After  the 
plaintiff  had  stated  his  case,  the  defendant  might  require  him  to  put  it  in  writing, 
and  a  day  was  given  for  that  purpose.  The  defendant  was  then  obliged  to  answer 
in  writing,  to  which  the  plaintiff  could  reply,  and  the  defendant  rejoin,  and  there 
ended  the  pleadings.  Each  party  then  went  before  the  notary  of  his  choice,  and  had  the 
depositions  of  his  witnesses  reduced  to  writing,  a  draft  or  copy  of  which  was  re- 

1  N.  T.  Eec.  of  Burgomasters  and  Schepens,  i,  188,  231 ;  ii.  10,  1T6 ;  iii.  188 ;  v.  190 ;  vi.  474 
vii.  180. 


16  HISTORY   OF   THE   COURT   AND   OF   THE 

tained  by  the  notary,  in  a  book  kept  by  him  for  the  purpose ;  and  where  it  was  ne- 
cessary, a  commission,  or,  as  it  was  called,  a  requisitory  letter,  might  be  obtained  for 
the  examination  upon  interrogation  of  witnesses  residing  beyond  the  court's  jurisdiction, 
who  were  examined  before  the  judges  of  the  local  court  where  the  witness  resided, 
who  sealed  up  the  examination,  and  transmitted  it  to  the  court  having  jurisdiction  of 
the  cause.     "When  the  proofs  were  complete,  they  were  added  to  the  pleadings,  the 
whole  constituting  what  was  called  the  memorial,  which  was  submitted  to  the  court, 
either  party  being  at  liberty  to  inspect  it,  and  having  the  right,  within  a  certain  time,  to 
have  any  of  the  witnesses  of  his  adversary  examined  upon  cross  interrogatories,  in  re- 
spect to  anything  contained  in  their  deposition,  which  was  deemed  material,  or  to  have 
additional  witnesses  examined  on  his  own  behalf  in  reply ;  the  manner  of  conducting 
which  subsequent  examination  was  arranged  by  the  judge.  But  this  mode  of  proceeding 
being  dilatory  and  expensive,  was  rarely  resorted  to.   The  great  majority  of  cases  were 
referred  to  arbitration,  or  disposed  of  upon  a  summary  hearing  of  the  parties  before 
the  magistrates ;  and  it  may  be  important  to  note,  in  respect  to  the  rules  of  evidence, 
that  whenever  a  paper  or  document  was  produced,  purporting  or  avowed  to  be  in 
the  handwriting  of  a  party,  it  was  assumed  to  be  his  handwriting,  unless  he  denied 
the  fact  under  oath  ;  and  that  merchants  or  traders  might  always  exhibit  their  books 
in  evidence,  where  it  was  acknowledged  or  proved  that  there  had  been  a  dealing  be- 
tween the  parties,  or  that  the  article  had  been  delivered,  provided  they  were  regu- 
larly kept  with  the  proper  distinction  of  persons,  things,  year,  month  and  day — a 
practice  which,  in  the  states,  of  New  Jersey  and  New  York,  survived  these  Dutch 
tribunals,  and  has,  at  the  present  day,  with  certain  qualifications  or  restrictions,  ex- 
tended to  nearly  every  state  in  the  Union.     Full  credit  was  given  to  all  such  books, 
especially  where  they  were  strengthened  by  oath,  or  confirmed  by  the  death  of  the 
parties,  and  also  to  memorandums,  made  between  parties  by  sworn  brokers.     A 
leading  distinction  in  evidence  was  also  made  between  what  was  termed  full  proof, 
as  where  a  fact  was  declared  by  two  credible  witnesses,  as  of  their  own  knowledge, 
or  it  was  proved  by  a  document  or  written  paper,  and  half  proof  as  where  it  rested 
upon  the  positive  declaration  of  knowledge  by  one  witness  only,  under  which  latter 
head,  as  weak  but  assisting  evidence,  hearsay  was  allowed,  which,  in  some  instances, 
as  in  the  case  of  certain  dying  declarations,  was  admitted  to  the  force  of  full  proof; 
and  as  the  determining  of  a  case  upon  the  evidence  of  witnesses  was  left  to  the 
judges,  very  discriminating  and  nice  distinctions  were  made  in  adjusting  or  weighing 
its  relative  force  or  value.1 

When  judgment  was  rendered  against  a  defendant  for  a  sum  of  money,  time  was 
given  for  payment,  usually  fourteen  days,  for  the  discharge  of  one  half,  and  the  re- 
mainder in  a  month.  If,  at  the  expiration  of  that  time,  he  did  not  comply,  applica- 
tion was  made  to  the  court,  and  the  schout,  or  usually  the  court  messenger,  went  to 
the  delinquent,  and  exhibiting  a  copy  of  the  sentence  and  his  wand  of  office,  which 
was  a  bunch  of  thorns,  summoned  him  to  make  satisfaction  in  twenty  four  hours. 
If,  at  the  expiration  of  that  time,  the  amount  was  not  paid,  the  delinquent  was  again 
summoned  to  pay  within  twenty  four  hours,  which  involved  additional  expense  ;  and 
if,  when  that  time  expired,  he  was  still  in  default,  the  messenger,  in  the  presence  of 
a  schepen,  took  into  custody  the  debtor's  movable  goods,  which  he  detained  for  six 

1  Rec.  of  N.  Y.  Burg,  and  Schep.  vii.  viii.  Myers'  Institutions  Judiciaries,  chap.  14, 387.  Van 
Leuwen,  book  v.  chap.  xiii.  toxx.  and  xxiii. 


JUDICIAL   ORGANIZATION   OF   THE   STATE.  17 

days,  within  which  time  they  might  be  redeemed  on  payment  of  the  expenses.  If 
they  were  not  redeemed,  notice  was  then  given  by  publicly  announcing  upon  a  Sun- 
day, and  upon  a  law  day,  that  they  would  be  sold,  and  at  the  next  law  or  market 
day  they  were  disposed  of  by  auction.  If  it  was  necessary  to  levy  upon  or  sell 
real  estate,  or  what  in  the  civil  law  is  termed  immovable  property,  a  longer  term 
was  allowed,  and  greater  formalities  were  required.  The  manner  of  selling  it  was 
peculiar.  The  officer  lighted  a  candle,  and  the  bidding  went  on  while  it  was  burn- 
ing, and  he  who  had  offered  the  most  at  the  extinction  of  the  candle,  was  declared  the 
purchaser,  which  differed  from  the  ordinary  mode  in  a  Dutch  auction,  where  a  public 
offer  of  the  property  is  made  at  a  price  beyond  its  real  value,  which  is  gradually 
lowered  or  diminished  until  one  of  the  company  agrees  to  take  it.1 

The  civil  business  of  the  court  was  large  and  varied  ;  such  as  actions  for  the  re- 
covery of  debts,  which  were  generally  cases  of  disputed  accounts,  or  of  misunder- 
standing between  the  parties,  for  in  proof  the  probity  and  punctuality  of  the  Dutch 
suits  by  creditors  to  enforce  payments  from  delinquent  debtors,  formed  but  a  small 
proportion  in  the  general  mass  of  this  business.  There  were  proceedings  by  attach- 
ments against  the  property  of  absconding  debtors,  or  of  non  residents  or  foreigners, 
on  which  security  was  required  of  the  debtor  intending  to  depart,  to  release  the  pro- 
perty from  the  attachment;  actions  to  recover  the  possession  of  land,  or  to  settle 
boundaries,  a  proceeding  somewhat  similar  to  the  relief  afforded  by  our  courts  of 
equity  upon  a  confusion  of  boundaries ;  actions  to  recover  damage's  for  injuries  to 
land  or  to  personal  property,  or  to  recover  specific  personal  property  as  in  replevin, 
or  its  value  as  in  trover. 

Actions  for  freight,  for  seamen's  wages,  for  rent,  for  breach  of  promise  of  mar- 
riage, where  the  performance  of  the  contract  was  enforced  by  imprisonment ;  for 
separation  between  man  and  wife,  in  which  case  the  children  were  equally  allotted 
to  the  parties,  and  the  property  divided,2  after  the  payment  of  debts ;  proceedings  in 
bastardy  cases,  in  which  the  male  was  required  to  give  security  for  the  support 
of  the  child,  and  in  which  both  delinquents  might  be  punished  by  fine  or  imprison- 
ment. Actions  for  assault  and  battery,  and  for  defamation,  which  were  quasi  criminal* 
proceedings,  punishable  by  fine,  imprisonment,  or  both,  though  the  defamer  was 
generally  discharged  upon  making  a  solemn  public  recantation  before  the  court,  some- 
times upon  his  knees,  asking  pardon  of  God  and  of  the  injured  party.  Pecuniary 
compensation,  for  injuries  to  person  or  character,  could  not  be  enforced ;  though 
cases  occurred  in  which  the  defendant  was  discharged,  it  appearing  that  he  had  made 
compensation  to  the  other  party  in  money  or  goods.  And,  from  the  frequent  appli- 
cation made  to  the  court  for  redress  in  cases  of  defamation,  detraction  would  seem 
to  have  been  a  vice  to  which  the  inhabitants  were  particularly  prone. 

The  court,  also,  acted  as  a  court  of  admiralty,  and  as  a  court  of  probate,  in  taking 
proofs  of  last  wills  and  testaments,  and  in  appointing  curators  to  take  charge  of  the 
estates  of  widows  and  orphans.  Application  was  made  to  Stuy  vesant  for  liberty  to 
establish  an  orphan  house,  similar  to  the  celebrated  institutions  which  exist  through- 
out Holland.  He  did  not  think  that  such  an  establishment  was  necessary,  but  he  after- 
wards assented  to  the  appointment  of  orphan  masters,  and  those  officers  acted  in 
aid  of  the  court.  Some  of  its  proceedings  in  the  exercise  of  this  branch  of  its  juris- 

1  Eec.  of  N.  T.  Burg,  and  Schep.  i.  204,  250;  T.  20T,  5T6.    Van  Leuwen,  book  5,  chap.  25. 
«  Eec.  of  N.  Y.  Burg.  &  Schep.  iv.  1659.    Kec.  of  Mayor's  Court,  i.  533. 


18  HISTORY   OF   THE   COUKT   AND   OF   THE 

diction,  will  serve  to  illustrate  how  tenaciously  the  Dutch  clung  to  old  forms  or  legal 
ceremonies,  as,  where  a  widow,  to  relieve  herself  from  certain  obligations,  desired 
to  renounce  her  husband's  estate ;  it  is,  in  all  such  cases,  recorded,  that  the  intestate's 
estate  "  has  been  kicked  away  by  his  wife  with  the  foot,"  and  that  she  has  duly  "  laid 
the  key  on  the  coffin."1  The  court  also  exercised  a  peculiar  jurisdiction,  that  of  sum- 
moning parents  or  guardians  before  them,  who,  without  sufficient  cause,  withheld  their 
assent  to  the  marriage  of  their  children  or  wards,  and  of  compelling  them  to  give  it.a 
It  also  granted  passports  to  strangers,  or  conferred  on  them  the  burgher  right,  a  dis- 
tinction, which  now,  that  it  has  ceased  to  be  attended  with  any  practical  advantage, 
is  still  kept  up  in  the  custom  of  tendering  or  presenting  the  freedom  of  the  city  to 
strangers,  as  a  mark  of  respect.  It  may  not  be  uninteresting,  moreover,  to  state,  that 
the  origin  of  a  fee  bill,  for  regulating,  by  a  fixed  and  positive  provision  of  law,  the 
costs  of  attorneys  and  other  public  officers,  is  to  be  traced  to  Stuyvesant.  On  the 
25th  of  January,  1658,  he  put  forth  what  is  known  in  Holland  as  a  placard,  that  is, 
a  proclamation,  or  ordinance,  emanating  from  some  legislative  or  executive  authority, 
having  the  force  of  law,  by  which  he  established  a  regular  tariff  of  fees.  In  Eng- 
land, the  fees  of  attorneys  and  other  officers  of  the  court  has  always  been  regulated 
by  the  court,  and  not  by  any  public  act.  In  New- York,  however,  the  fees  of  public 
officers  has  been  a  matter  of  statute  regulation  from  a  very  early  period.  Ten  or 
twelve  years  after  the  restoration  of  the  province  to  the  English,  they  were  regu- 
lated by  an  ordinance  of  the  governor,  and  afterwards  by  acts  of  the  general  assem- 
bly; and  there  is  every  reason  to  believe  that  the  practice,  especially  as  respects  the 
fees  of  attorneys  and  officers  of  the  court,  was  derived  from  the  Dutch.3  A  copy  of 
Stuyvesant's  ordinance  remains  in  the  records  of  the  burgomaster  and  schepens, 
and  as  the  preamble  to  the  document  is  of  interest  as  a  legal  curiosity,  we  shall 
take  the  liberty  to  insert  it.  "  Whereas,  the  director  general  and  council  of  New 
Netherland,  have  sufficient  evidence  from  their  own  experience,  in  certain  bills  of 
costs  which  have  been  exhibited  to  them,  as  well  as  by  the  remonstrances  and 
complaints  which  have  been  presented  to  them  by  others,  of  the  exactions  of 
•Scriveners,  notaries,  clerks,  and  other  licensed  persons,  in  demanding  and  collecting 
from  contending  persons,  excessively  large  fees,  and  money,  for  writing  for  almost 
all  sorts  of  instruments,  to  the  manifest,  yea,  insufferable  expense  of  judgments  and 
judicial  costs;  some  of  whom  are  led  by  their  covetousness  and  avarice  so  far,  as  to 
be  ashamed  to  make  a  bill  or  specify  the  fees  they  demand,  but  ask  or  extort  a 
sum  in  gross.  Therefore,  to  provide  for  the  better  and  more  easy  administration  of 
justice,  the  director  general  and  council  do  enact,"  &c. ;  after  which  follows  pro  visions 
requiring  the  licensing  of  the  officer  entitled  to  take  the  fees,  the  keeping  of  a  record 
of  all  fees  charged  by  them,  and  prohibiting  champetry  and  other  abuses.  It  is  then 
provided,  that  the  officers  enumerated  shall  serve  the  poor  gratis,  for  God's  sake,  but 
may  take  from  the  wealthy  the  fees  specified.  Each  particular  service  is  then  enu- 
merated in  the  manner  of  our  former  fee  bills,  with  the  number  of  stivers  allowed 
for  each.  Among  the  provisions  is  the  following  entry:  "No  drinking,  treats, 


1  Eec.  of  N.  Y.  Burg.  &  Schep.  ii.,  323. 

2  Eec.  of  N.  Y.  Burg,  and  Schep.  vols.  1,  2,  3,  4, 5,  6. 

3  Ordinance  and  Table  of  Fees  in  first  edition  of  the  Colonial  Laws,  by  Bradford,  1694 ;  Charter 
Book  and  Acts  of  Assembly  of  1683,  in  office  of  Secretary  of  State  ;  Laws  of  1T09,  ordinance  regu- 
lating fees. 


JUDICIAL   ORGANIZATION   OF   THE    STATE.  19 

presents,  gifts  or  doucers  shall  be  inserted  in  any  bill,  or  demanded  ;"  and  the  ordi- 
nance concludes  by  directing,  that  it  shall  be  read  once  every  year  in  the  court,  upon 
a  day  specified,  to  the  officers  enumerated,  who  were  thereupon  to  be  sworn  faith- 
fully to  observe  it;  any  officer  being  subject,  for  a  violation  of  its  provisions,  to  a 
fine  of  fifty  guilders,  or  the  loss  of  his  office.1 

In  criminal  cases,  the  schout  prosecuted  as  plaintiff  on  behalf  of  the  community. 
At  his  requisition,  and  upon  the  inspection  by  a  magistrate  of  evidence  sufficient  to 
warrant  a  belief  that  an  offence  had  been  committed,  the  offender  might  be  ar- 
rested or  summoned  according  to  the  discretion  of  the  magistrate ;  though  where 
the  culprit  was  detected  in  the  actual  perpetration  of  the  deed,  or  where,  in  the 
judgment  of  the  schout,  there  was  strong  ground  of  suspicion  against  him,  and,  in  hia 
opinion,  the  public  interest  demanded  it,  he  might  direct  his  immediate  arrest ;  but  in 
all  such  cases  the  schout  was  obliged  to  give  notice  of  the  arrest  to  the  magistrate 
within  twenty  four  hours,  who  was  thereupon  bound  to  investigate  the  matter — a 
provision  that  practically  dispensed  with  the  necessity  of  the  writ  of  habeas  corpus, 
so  familiar  in  the  history  of  the  English  law.3  Bail  was  allowed,  except  in  cases  of 
murder,  rape,  arson  or  treason.  There  were  two  modes  of  trying  the  prisoner ; 
either  publicly  upon  general  evidence,  which  was  the  ordinary  mode,  or  by  examin- 
ing him  secretly  in  the  presence  of  two  schepens,  in  which  written  interrogatories 
were  propounded  to  the  prisoner,  to  which  he  was  obliged  to  return  categorical 
answers.  The  Dutch  law  then  adhering  to  the  general  policy  of  the  civil  law  in 
respect  to  extorting  confessions  from  offenders,  and  making  use  of  the  torture  and  of 
all  those  inquisitorial  aids  and  appliances  which  have  cast  such  a  blemish  upon  the 
criminal  jurisprudence  of  Europe.3  The  torture,  however,  was  not  used,  except 
where  the  presumptive  proof  amounted  almost  to  a  certainty  ;  and  but  one  case  has 
been  found  upon  the  records  in  which  this  cruel  and  unnecessary  test  was  resorted 
to.  Criminal  prosecutions  were  not  frequent,  nor  were  the  offences  generally  of  a 
grave  character.  The  punishments  were  by  fine,  which  were  distributed  id  three 
equal  parts,  to  the  schout,  to  the  court  and  to  the  poor;  by  imprisonment,  whipping,  the 
pillory,  banishment  from  the  city  or  the  province,  or  death,  which,  however,  could 
not  be  inflicted  without  the  concurrence  of  the  governor  and  his  council.4 

Courts  of  the  same  popular  character  were  established  upon  Long  Island,6  shortly 
after  the  erection  of  the  one  at  New  Amsterdam.  A  court  with  two  schepens  existed 
at  Breuklin  (Brooklyn)  before  1654,  which  in  that  year  was  increased  to  four  schepens. 
There  was  one  at  Midwout,  (Flatbush,)  with  three  schepens,  and  another  at  Amersfoort, 
(Flatlands.)  David  Provoost,  who  had  been  a  notary  at  New  Amsterdam,  was  made 
schout  of  Breuklin,  and  a  district  court  was  established,  composed  of  the  schout  of 
Breuklin,  and  of  delegates  from  these  three  tribunals,  which  was  continued  until  1661. 
In  that  year,  similar  courts  were  established  at  Boswyck,  (Bushwick,)  and  at  New 
Utrecht,  and  the  whole  were  formed  into  a  district  known  as  "  the  five  Dutch  towns," 
to  which  there  was  attached  one  schout,  residing  at  Breuklin,  each  town  having  its 


1  Placards  of  Stuyvesant,  in  Rec.  of  N.  Y.  Barg.  &  Sahep. 

2  Ordinances  of  Amsterdam,  p.  46,  and  seq.  Ed.  of  16i4, 

3  La  Praclique  et  encheridon  des  causes  Criminills,  Loavain,  1553.  Van  Lenwen,  book  5,  chaps. 
27, 23. 

4  Rec.  of  N.  Y.  Burg,  and  Schep.  ir.  141. 

8  2  Thompson's  History  of  Long  Island,  96.    2  O'Call.  313,  323. 

c 


20  HISTORY    OF   THE    COURT   AJSTD    OF   THE 

separate  courts.1  Courts  were  also  established  by  virtue  of  a  grant  from  Stuy  vesant, 
among  the  English  settlers  at  Canorasset,  (Jamaica,)  in  1656,2  and  at  Middleburgh, 
(Newtown,)  in  1659.3  In  1652,  Stuyvesant,  by  the  simple  exercise  of  his  prerogative, 
established  a  court  at  Beverwyck,  (Albany,)  independent  of  the  patroon's  court  of 
Raensellervyck.4  It  was  held  at  the  house  of  the  vice  director,  upon  the  second  floor, 
in  a  room  directly  under  the  roof,  without  a  chimney,  and  to  which  access  was  had 
by  a  straight  ladder,  through  a  trap  door.5  The  courts  thus  enumerated,  including 
the  patroon  courts,  already  referred  to,  and  the  supreme  or  appellate  court  at 
New  Amsterdam,  composed  of  the  governor  and  council,  constituted  the  judicial 
tribunals  of  New  Netherland,  until  thetolony  passed  into  the  hands  of  the  English. 

That  event  took  place  on  the  6th  September,  1664.6  By  the  terms  of  capitulation 
entered  into  between  Col.  Richard  Nicolls  and  Stuyvesaut,  it  was  agreed  that  such 
of  the  inhabitants  as  desired  might  return  to  Holland,  and  that  those  who  remained 
should  continue  to  enjoy  their  own  customs  concerning  their  inheritances  ;  that  public 
records,  except  such  as  concerned  the  states  general,  should  be  carefully  kept ;  that 
all  contracts  made  before  the  signing  of  the  articles  should  be  determined  according 
to  the  manner  of  the  Dutch ;  that  no  judgment  that  had  passed  any  judicature  in  the 
colony  should  thereafter  be  called  in  question,  and  that  all  inferior  civil  officers  and 
magistrates  should  continue  as  they  were  until  the  customary  time  of  new  elections, 
when  they  should  then  have  the  choice  of  their  successors,  the  new  magistrates  so 
chosen  taking  the  oath  of  allegiance  to  the  king  of  Great  Britain.7  Immediately 
upon  assuming  the  government,  as  the  representative  of  James,  Duke  of  York,  to 
whom  the  territory  had  been  ceded  by  virtue  of  a  grant  or  patent  from  Charles  II., 
Nicolls  changed  its  name,  as  well  as  that  of  the  city,  to  New  York,  but  abstained 
from  any  interference  with  the  municipal  government  of  the  city,  or  with  the  ad- 
ministration of  justice,  until  a  later  period. 

He  carried  out  the  terms  of  capitulation  that  had  been  agreed  upon,  and  adapted 
his  measures  so  judiciously,  that  the  municipal  government  of  the  burgomasters  and 
schepens  was  resumed  within  a  week,  and  the  administration  of  justice  was  proceeded 
with  as  before.  Upon  resuming  their  duties,  the  burgomasters  and  schepens  ad- 
dressed a  long  letter  to  the  directors  of  the  "West  India  Compai  y,  announcirg  the 
capitulation,  and  setting  forth  the  reasons  why  they  had  deemed  it  best  to  continue 
under  the  rule  of  their  conquerors.  It  was  an  affectionate  and  earnest  epistle,  ad- 
dressed to  the  directors  by  "  their  honors'  loyal,  sorrowful  and  desolate  subjects," 
concluding  in  these  words:  "Meanwhile,  since  we  have  no  longer  to  depend  upon 
your  honors'  power  and  protection,  we,  with  all  the  poor  sorrowing  and  abandoned 
commonalty  here,  must  fly  for  refuge  to  the  Almighty  God,  not  doubting  but  that 
He  will  stand  by  us  in  this  sorely  afflicting  conjunction.  \Ve  remain  your  sorrowful 
and  abandoned  subjects.  Done  at  Joick,  (York,)  heretofore  named  Amsterdam,  in 
New  Netherland,  16th  of  Sept.,  1664."'8  "When  the  time  arrived,  in  the  February 


Brodhead,  580. 

Thompson's  History  of  Long  Island,  96. 
Eiker's  Annals  of  Newtown. 

Albany  Eec.  183.    Records  of  Mortgages,  Albany,  book  A.    2  O'Call.  183. 
2  O'Call.  811. 
Brodhead,  T62. 

2  Rev.  Laws,  Appendix,  No.  1. 
*  5  Rec.  of  N.  Y.  Burg,  and  gchepens. 


JUDICIAL   ORGANIZATION   OF  THE   STATE. 


21 


following,  for  choosing  new  magistrates,  great  reluctance  was  shown  to  take  the  oath 
of  allegiance.  Peter  Tonneman,  the  sellout,  positively  refused,  and  departed  for 
Holland.  Allard  Anthony  was  chosen  in  his  place,  and  he,  with  the  other  new 
magistrates,  took  the  oath,  though  but  one  hundred  and  fifty  of  the  inhabitants  could 
be  prevailed  upon  to  do  so. 

James  was  no  sooner  apprised  of  the  success  of  his  expedition,  than  he  applied  to 
his  father-in-law,  Clarendon,  then  Lord  Chancellor  and  first  lord  of  the  committee 
on  foreign  plantations,  to  draw  up  a  body  of  laws  for  the  government  of  his  new 
territory.  Clarendon  accordingly  prepared  a  code;1  and  this  code  or  digest  was 
transmitted  to  Nicolls,  who  immediately  called  a  convention,  formally  to  ratify  and 
adopt  it.  This  convention  was  held  at  Hempstead,  Long  Island,  on  the  last  day  of 
February,  1665,  or  about  five  months  after  the  capitulation  of  the  province.  It  was 
composed  of  two  delegates  from  each  of  the  towns  of  Long  Island,  and  from  West- 
chester,2  in  all,  thirty  four  members.  The  English  had  settled  in  parts  of  Westchester 
and  Long  Island,  adopting,  in  many  of  their  settlements,  their  own  usages  and  cus- 
toms. In  the  towns  on  Long  Island  associated  with  New  England,  the  common  law 
was  in  use,  while  in  those  near  New  York,  the  Dutch  law  prevailed.3  It  would 
seem,  from  the  proclamation  of  Nicolls,  as  well  as  from  the  fact  that  no  delegates 
were  elected  for  or  sent  to  represent  the  city  of  New  York,  that  he  intended  j  that 
this  code  should  merely  go  into  operation  in  Long  Island  and  Westchester,  and 
should  have  no  effect  in  New  York  and  the  Dutch  settlements  along  the  Hudson 
and  at  Albany.  It  was  framed  for  the  government  of  the  whole  province,  but 
Nicolls,  who  was  a  judicious  and  sensible  man,  doubtless  perceived  how  impossible 
it  would  be  to  bring  it  into  opsration  among  a  people  more  than  three  fourths  of  whom 
were  unable  to  speak  the  language  of  their  rulers,4  and  who  had  lived  for  nearly  half 
a  ceulury  under  municipal  and  judicial  institutions  derived  from  their  mother  country, 
with  such  changes  and  modifications  as  were  adapted  to  their  peculiar  condition . 
The  delegates  met,  aud,  after  settling  the  boundaries  of  the  several  towns,  the  code, 
which  was  thereafter  known  as  "the  Duke's  Laws,"  was  publicly  promulgated  or 
ratified,  and  written  copies  of  it  distributed  for  the  use  of  the  towns.  The  conven- 
tion merely  adopted  the  code  in  the  form  in  which  they  received  it,  for  very  soon, 
after,  Nicolls  issued  an  order,  wherein,  after  declaring  that  he  had  received  informa- 
tion, that  at  the  sitting  of  the  convention  divers  inconveniences  were  found  in  par- 

1  The  writer  is  indebted  to  Dr.  O'G  illaghan  for  the  flrst  intimation  of  the  fact  that  Clarendon 
was  the  author  of  this  code.  Many  circumstances  might  be  adduced,  the  result  of  a  very  full 
investigation  of  the  subject,  to  sho\v  that  he  was  author,  but  it  is  thought  that  it  will  be  sufficient 
t  >  insert  the  following  note,  resolved  from  Dr.  O'Callaghan,  with  reference  to  certain,  documents  ? 

Albany,  21s*  Oat*,  1854. 

MY  DEAR  Sra,— Your  favor  of  the  ISth  reached  ins  yesterday,  and  I  seize  the  earliest  moment, 
t  >  state,  in  reply  to  your  inquiry,  that  in  the  coarse  of  my  researches,  preparatory  to  the  publication 
of  my  2d  volume  of  the  History  of  New  Netherland,  I  came  across  the  fact  in.some  old  record.  It , 
made  a  strong  impression  on  my  mind  at  the  time,  though  I  neglected  to  make  a  note  of  it,  as  it 
was  posterior  to  the  period  to  \vhich  my  researches  were  limited.  Should  I  again  come  across 
the  old  paper,  I  shall  have  much  pleasure  in  informing  you  of  the  circumstance. 

Believe  me,  &o.,  &c., 

K  B.  O'CALLAOHAK, 

And  see  3  Colonial  Doc.  relative  to  History  of  N.  Y.  92, 104, 106, .114, 116. 

8  1  Thompson's  History  of  Long  Island,  131. 

3  1  Thompson's  Long  Island,  180. 

*  3  Doc.  relating  to  N.  Y.  Col,  Hist.  114. 


*&  HISTORY   OF   THE   COURT  AND   OF   THE 

ticular  laws  embodied  in  the  digest,  and  that  other  things  needful  to  be  inserted  had 
been  omitted,  he  had  thought  fit  to  make  amendments  and  additions;  and  at  the 
first  setting  of  the  court  of  assize,  on  the  28th  of  October  following,  nearly  one  hundred 
additional  amendments  were  made,  which  were  confirmed  by  James,1  and  material 
alterations  were  afterwards  added  in  the  years  1662,  1672,  1676.  This  code,  as 
appears  from  entries  upon  copies  now  remaining,  as  well  as  from  a  statement  of 
James,2  was  compiled  from  the  laws  then  existing  in  the  other  colonies.  It  was 
based  entirely  upon  the  English  constitution,  with  little  or  no  reference  to  the  mode 
of  procedure,  or  of  the  laws  which  had  been  so  long  in  use  among  the  Dutch,  an 
omission  the  more  remarkable,  as  Clarendon  had  resided  with  Charles  during  his 
exile  at  the  Hague,  and  could  not  have  been  insensible  to  many  advantages  in  the 
Dutch  judicial  system.  The  only  indication  that  he  thought  of  it  at  all,  was  a  pro- 
vision that  all  small  causes  should  be  referred  to  arbitration,  but  it  was  so  imper- 
fectly framed,  that  it  never  had  any  practical  effect.  As  a  consequence  of  this 
neglect  to  adopt  his  code  to  the  major  part  of  the  people  it  was  intended  to  govern, 
it  was  many  years  before  it  came  into  full  operation  in  the  city  of  New  York,  or  in 
the  other  parts  of  the  province  where  the  Dutch  had  colonized  and  settled. 

As  the  judicial  organization  established  by  it  is  the  important  part  of  our  inquiry, 
•a  very  brief  notice  of  its  provisions,  in  other  respects,  is  all  that  will  be  necessary.3 
It  prohibited  slavery,  and  established  something  like  religious  toleration,  by  enacting 
that  no  person  who  professed  Christianity  should  be  molested,  fined  or  imprisoned, 
for  differing  in  judgment  in  matters  of  religion  ;  but  decreed,  that  any  one  who  should 
deny  the  true  God  or  his  attributes,  should  be  put  to  death.  No  Indian  was  "  to 
pow-wow  or  perform  outward  worship  to  the  devil,  within  the  government,"  No 
lands  were  to  be  purchased  from  Indians  without  the  governor's  leave.  The  sale  of 
fire  arms  or  strong  liquor,  to  them,  was  prohibited,  under  heavy  penalties.  No  one 
•was  authorized  to  trade  with  them  without  a  license ;  and  in  the  administration 
of  justice,  they  were  to  have  all  the  privileges  enjoyed  by  the  whites.  It  pre- 
scribed the  mode  for  the  government  of  townships,  for  collecting  the  revenue,  for  ad- 
justing the  boundaries  of  towns,  and  authorized  the  granting  of  new  patents  to  all 
owners  of  land,  and  abolished  many  feudal  incidents  and  tenures.  It  provided  for 
the  administration  of  the  estates  of  intestates,  and  for  an  equitable  division  of  the 
property  among  heirs.  All  conveyances,  records  of  bargain  and  sale,  and  wills,  and 
other  instruments  connected  with  the  administration  of  estates,  where  the  estate  ex- 
ceeded £100,  were  to  be  registered  ra  the  office  of  records,  which  was  established 
in  the  city  of  New  York.  Special  provisions  were  inserted  for  the  regulation  of 
innkeepers,  even  to  the  prico  of  a  meal,  and  for  the  regulation  of  attorneys,  phy- 
sicians, surgeons,  midwives,  and  other  pursuits,  and  for  the  care  of  cattle,  and  the 
adjustment  of  weights  and  measures.  Acy  person  bringing  a  vexatious  suit,  was  to 
be  amerced  in  treble  damages.  Ample  provision  was  made  for  the  general  observ- 
ance of  religion,  for  the  support  of  ministers,  and  the  building  of  churches.  Justices 
of  the  peace  were  allowed  to  marry,  and  a  record  was  directed  to  be  kept  of  births, 
marriages,  deaths  and  burials.  Some  of  the  provisions  in  respect  to  the  domestic 
illations  were  peculiar.  A  married  person,  absent  in  foreign  parts  over  four  years, 


1  Coll.  of  N.  T.  Historical  Society,  305.    3  Doc.  relating  to.Col.  Hist,  of  N.  T.  104. 
3  Doc.  reUo  N.  Y.  Col.  Hiet  226. 
1  Col.  of  N.  Y.  Historical  Society,  305. 


JUDICIAL   OEGANIZATION    OF   THE   STATE.  23 

was  presumed  to  be  dead,  and  the  other  party  might  marry  again  ;  but  if  the  ab- 
sentee returned  after  five  years,  and  could  show  that  he  had  endeavored,  by  writing 
or  by  messages,  to  communicate  that  he  was  still  living,  or  was  "in  imprisonment  or 
bond  slavery,  with  Turks  or  other  heathen,"  he  could,  notwithstanding  the  second 
marriage,  obtain  an  order  for  recohabitation  ;  or  if  the  parties  to  the  original  mar- 
riage consented  to  release  each  other,  the  second  marriage  remained  valid,  the  husband 
by  the  first  marriage  having  imposed  upon  him  the  charge  of  supporting  the  children  by 
that  marriage.  The  respect  due  to  parents  by  children  was  enforced  with  a  severity 
savoring  of  Chinese  rigor.  Any  child,  over  sixteen  years  of  age,  of  sufficient  understand- 
ing, that  should  "  smite  "  its  father  or  mother,  unless  forced  thereto  in  self  preservation, 
was,  upon  the  complaint  of  the  father  or  mother,  but  not  otherwise,  to  suffer  death. 
The  part  of  the  code  which  related  to  the  public  defence,  and  the  military  organization 
of  the  colony,  was  the  most  minute  in  its  provisions,  and  was  evidently  framed  by  an 
experienced  military  officer.  In  this  the  hand  of  James  was  apparent ;  for  whatever 
may  have  been  the  faults  of  this  prince,  his  admirable  management  of  the  English  navy 
and  dock  yards,  and  his  thorough  supervision  of  the  affairs  of  the  colony  of  New 
York,  prove  him  to  have  been  a  man  of  more  than  ordinary  administrative  capacity. 

The  judicial  organization,  established  by  the  Duke's  Laws,  was  as  follows:  Jus- 
tices of  the  peace  were  commissioned  for  the  various  towns,  who  were  clothed  with 
all  the  powers  exercised  by  such  officers  in  England,  and  were  allowed  £20  a  year 
for  their  services,  which  was  afterwards  limited  to  the  payment  of  a  specific  sum  for 
their  attendance.  A  local  court  was  created  in  each  town  for  the  trial  of  actions  of 
debt  or  trespass,  under  five  pounds.  It  was  held  once  in  every  two,  three  or  four 
weeks,  as  was  found  most  convenient  by  the  constable  and  overseers  of  the  town, 
who  were  elected  yearly  by  the  freeholders.  Six  overseers,  with  the  constable,  or 
seven  without  him,  constituted  a  quorum  for  the  transaction  of  business ;  and  when 
the  court  was  assembled,  all  matters  were  determined  by  the  vote  of  the  majority. 
If  the  court  were  equally  divided,  the  constable  had  the  casting  vote.  In  1666,  the 
number  of  overseers  were  reduced  to  four,  and  any  two  of  them,  with  the  constable, 
held  the  court.  To  this  court  a  clerk  was  attached,  known  as  the  town  clerk,  and 
there  was  an  appeal  from  its  decisions  to  the  court  of  sessions. 

The  province  was  divided  into  three  ridings,  known  as  the  east,  west  and  north 
riding,  and  in  each  a  court  of  sessions  was  established,  which  was  held  twice  a  year, 
that  is,  on  the  first,  second  and  third  Wednesdays  in  March,  and  on  the  corresponding 
Wednesdays  in  June.  The  court  of  sessions  was  held  by  all  the  justices  living 
within  the  riding.  In  the  absence  of  a  superior  officer,  such  as  a  member  of  the 
provincial  council,  the  members  of  which  were  all  commissioned  for  the  peace,  the 
oldest  justice  presided  as  the  chief  officer,  whose  duty  it  was  to  instruct  the  jury  as 
to  the  law,  and  to  pronounce  the  "  decree"  or  "  sentence"  of  the  court.  All  actions 
at  law  and  all  criminal  cases,  were  tried  before  a  jury.  The  jury  were  composed  of 
the  overseers  of  the  different  towns  within  the  riding.  Every  town  elected  eight 
overseers,  and  an  equal  proportion  from  each  town  was  returned  by  the  sheriff  to 
serve  as  jurors  at  the  sessions.  Seven  jurors  were  empanneled  for  the  trial  of  a 
cause,  and  the  verdict  of  a  majority  was  sufficient,  except  in  capital  cases,  when  the 
court  might  empaunel  twelve,  which  was  uniformly  done,  and  the  twelve  were  re- 
quired to  be  unanimous.  This  court  had  both  civil  and  criminal  jurisdiction.  It 
had  cognizance  of  all  civil  actions  above  five  pounds;  and  there  was  no  appeal  from 
its  judgment,  except  in  cases  of  over  twenty  pounds.  It  was  a  court  of  probate,  and 


24  HISTORY  OF  THE  COURT  AND  OF  THE 

exercised  the  jurisdiction  now  entrusted  to  surrogates.  It  had,  also,  the  power  of 
granting  a  rehearing  in  any  case,  or,  as  it  was  called,  a  "  review,"  and  upon  such 
review  might,  in  its  discretion,  admit  new  evidence.  From  its  judgments  an  appeal 
lay  to  the  court  of  assize ;  and  in  cases  not  provided  for  by  law,  or  to  which  no  pun- 
ishment was  attached,  it  was  required  to  remit  the  case  to  the  court  of  assize,  where 
judgment  might  be  rendered  and  punishment  inflicted  according  to  the  discretion  of 
the  court,  provided  it  was  not  repugnant  to  the  laws  of  England. 

The  principal  or  highest  tribunal  in  the  province  was  the  court  of  assize,  or,  as  it  was 
sometimes  called,  the  general  assizes.  It  was  held  once  a  year  in  the  city  of  New 
York,  by  the  governor  and  his  council,  and  such  of  the  justices  of  the  peace  through- 
out the  province  as  saw  fit  to  attend  it.  It  had  original  jurisdiction — civil,  criminal 
and  equitable — having  cognizance  of  civil  and  equitable  actions  where  the  amount 
exceeded  twenty  pounds — and  was  the  appellate  court  from  all  inferior  jurisdiction. 
As  in  the  court  of  sessions,  causes  were  tried  by  a  jury,  which  originally  consisted  of 
six,  but  was  afterwards  increased  to  twelve,  and  the  trial  by  jury  was  not  limited  to 
cases  originally  brought  into  the  court,  but  was  extended  to  cases  on  appeal. 

The  annual  setting  of  the  court  of  assize  was  on  the  last  Wednesday  in  October ; 
but  for  the  hearing  of  cases  that  required  speedy  despatch,  a  session  of  the  court 
might  be  called  at  any  time  by  a  special  warrant  from  the  governor.  The  governor 
and  council  were  also  empowered  to  issue  a  commission  for  a  court  of  oyer  and  ter- 
miner,  where  it  was  certified  to  them  from  the  court  of  sessions  that  a  capital 
offence  had  been  committed,  and  that  more  than  two  months  would  elapse  before 
the  sitting  of  the  court  of  assize.  But  courts  of  oyer  and  terminer  would  seem  to 
have  been  unfrequent,  but  two  instances  of  the  setting  of  such  a  court  haviug  been 
found  upon  the  records.1  When  called,  the  judges  who  were  to  hold  it,  were  named 
in  the  commission.2 

It  was  the  design  of  Clarendon  that  the  court  of  assize  should  be  nothing  more 
than  a  judicial  tribunal,  but  it  became  in  time  a  kind  of  colonial  legislature.  When 
the  convention  was  called  at  Hempstead,  it  was  generally  expected,  especially 
among  the  English  residents  of  Long  Island,  that  a  representative  assembly  would 
be  convened  similar  to  those  which  existed  in  New  England,  and  that  it  would  be  con- 
tinued annually  thereafter.  But  there  was  no  provision  for  a  provincial  assembly 


i  Rec.  of  Wills,  N.  T.  Surrogate's  Office,  vol.  i.    1  Smith,  41. 

3  In  Smith's  History,  it  is  stated  that  Nicolls  erected  no  court  of  justice,  but  took  upon  him- 
self the  sole  decision  of  all  controversies ;  that  complaints  came  before  him  upon  petition, 
upon  which  he  gave  a  day  to  the  parties,  and  after  a  summary  hearing,  pronounced  judgment ; 
that  his  determinations  were  called  edicts,  and  were  executed  by  the  sheriffs  he  had  appointed. 
He  further  says,  when  speaking  of  the  administration  of  Nicolls'  successor,  Governor  Lovelace, 
that  Lovelace,  "  instead  of  taking  upon  himself  the  sole  determination  of  judicial  controversies, 
after  the  example  of  his  predecessor,  called  to  his  assistance  a  few  justices  of  the  peace,  and  this, 
which  was  called  the  court  of  assize,  was  the  principal  law  judicatory  in  these  times."  For  this 
statement,  there  is  not  the  slightest  foundation,  further  than  that  appeals  to  the  court  of  assize 
came  up  in  the  form  of  a  petition  to  the  governor  and  council ;  and  that  in  one  instance  Nicolls 
issued  a  special  commission  for  the  investigation  of  the  causes  of  the  riots  at  Esopus,  (Kingston,) 
and  of  the  trial  of  the  rioters  by  the  commissions  in  conformity  to  instructions  which  he  framed 
and  transmitted.  On  the  contrary,  it  appears  by  the  records  of  the  court  of  assize,  which  are 
still  extant,  from  the  year  1665  to  1672,  that  the  court  was  duly  convened  by  Nicolls,  at  New  York, 
upon  the  day  appointed  for  its  first  sitting  by  the  Duke's  Laws,  Sept.  28, 1665,  and  that  the  first 
cause  before  it  was  tried  by  a  jury.  3  Doc.  rel.  to  N.  Y.  Col.  History,  149.  Eec.  of  Court  of  As- 
size, 14. 


JUDICIAL   ORGANIZATION   OF   THE    STATE.  25 

ia  the  duke's  laws;  nor  was  it  the  intention  of  James  that  any  such  privilege  should 
be  granted.1  When  the  delegates  met  at  Hempstead  they  were,  no  doubt,  apprised 
of  what  was  expected  from  them,  and  after  fixing  the  boundaries  of  the  towns,  and 
formally  ratifying  the  duke's  laws,  they  took  no  further  action,  but  wound  up  their 
labors  with  an  address  filled  with  expressions  of  unbounded  loyalty  to  James,  and 
of  cheerful  submission  to  all  such  laws  as  he  had  enacted,  or  might  thereafter  enact.2 
The  whole  conduct  of  the  convention,  and  the  servile  character  of  this  address,  gave 
rise  to  loud  complaints.  The  inhabitants,  particularly  those  of  English  origin,  re- 
garded the  result  of  the  convention  as  equivalent  to  the  surrender  of  their  right  to  a 
legislative  assembly ;  and  finding  that  such  a  distinction  was  to  be  made  between 
them  and  their  New  England  brethren,  their  censure  of  the  delegates  was  open 
and  general.  In  fact,  it  was  so  freely  indulged  in,  and  so  long  continued,  that  the 
court  of  assize,  some  eighteen  months  after,  passed  a  resolution,  threatening  with  a 
public  prosecution  any  one  who  should  speak  against  the  signers  of  the  address. 
When  it  became  apparent,  therefore,  that  all  hope  of  a  representative  assembly  was 
cut  off,  the  desire  for  popular  representation  began  to  show  itself  in  the  court  of 
assize.  It  had  something  of  a  popular  element  in  the  numerous  justices  of  the 
peace  who  were  privileged  to  attend  it.  As  early  as  I66t»,  petitions  came  before  it  for 
the  redress  of  grievances,  and  the  enactment  of  necessary  laws ;  and  Nicolls,  who  was 
a  man  of  moderation,  and  disposed  to  adapt  the  government  to  the  wishes  and  wants 
of  the  people,  made  no  opposition  to  the  members  of  the  court '  deliberating  upon 
matters  affecting  the  general  welfare  of  the  province.  Under  Lovelace,  this  assump- 
tion of  legislative  powers  became  more  decided,  and  justices  of  the  peace  attended 
its  sittings  even  from  so  remote  a  part  of  the  province  as  Delaware.3 

It  was  determined  that  each  member  of  the  court  was  entitled  to  vote  ;  that  the 
voice  of  the  majority  should  control ;  and  at  each  annual  sitting,  measures  of  a 
strictly  legislative  character  were  adopted,  which  were  not  formally  enacted  as  laws, 
but  put  forth  for  the  government  of  the  province,  in  the  shape  of  general  orders. 
This  exercise  of  legislative  powers  did  not  interfere  with  its  judicial  functions.  It 
still  continued  to  be  the  highest  judicial  tribunal,  but  this  branch  of  its  business  was 
mainly  limited  to  cases  upon  appeal. 

After  the  passage  of  the  duke's  laws,  no  action  was  taken  respecting  the  city  of 
New  York,  until  the  12th  of  June,  1665.  During  the  ten  months  that  had  inter- 
vened since  the  capitulation,  the  court  of  burgomaster  and  schepens  had  continued 
in  the  exercise  of  its  municipal  and  judicial  functions  ;  but  on  that  day,  Nicolls  pub- 
lished a  proclamation,  abolishing  the  form  of  government  established  by  the  Dutch, 
and  declaring  that,"  For  the  future  government  of  the  city,  persons  should  be  commis- 
sioned to  put  the  laws  in  execution,  in  whose  prudence  ability  and  good  affection  to 
the  government  of  England,  he  might  have  reason  to  put  confidence ;"  which  persons, 
he  declared,  "  should  be  known  thereafter  as  the  mayor,  aldermen  and  sheriff,  ac- 
cording to  the  custom  of  the  corporations  in  England."  Upon  the  same  day,  a  joint 
commission  was  granted,  appointing  Thomas  Willett,  mayor;  Thomas  Delavall,  Oloff 
Stuyvesaut,  John  Bruggs,  Cornelius  Van  Ruy ven  and  John  Lawrence,  aldermen ;  and 
Allard  Anthony,  the  existing  schout,  sheriff;4  and  these  officers  were  declared  to  be 


i  3  Doc.  rel.  to  N.  Y.  Col.  Hist.  230. 

a  See  1  Thompson's  Long  Island,  183,  in  which  this  address  is  printed  at  length. 

»  Bee.  of  Court  of  Assize.  *  Doc,  Hist  of  N.  Y.  389. 


26  HISTORY   OF   THE   COURT  AND   OF   THE 

a  body  politic  and  corporate  thereafter,  with  power  to  govern  the  city  according  to 
the  laws  then  existing,  or  which  might  thereafter  be  enacted.  These  magistrates 
assembled  on  the  15th  of  June  following.  They  reappointed  the  former  clerk  of  the 
court  of  burgomaster  and  schepens ;  changed  the  name  of  the  court  to  the  mayor's 
court — a  title  by  which  it  was  known  for  one  hundred  and  fifty-six  years  after- 
wards— and,  after  making  a  few  minor  appointments,  and  transacting  some  further 
business,  adjourned.  They  met  again  on  the  27th  of  June,  for  the  hearing  and 
trial  of  causes.  The  records  were  directed  to  be  kept  in  English  and  Dutch,  and  a 
jury  of  twelve  were  empanneled  for  the  trial  of  a  civil  cause  ;*  but,  with  this  excep- 
tion, the  business  was  conducted  precisely  as  before.  The  change  was,  in  fact,  more 
formal  than  real.  It  was  merely  altering  the  burgomaster  into  a  mayor,  the  schepen 
into  an  alderman,  and  the  schout  into  a  sheriff.  In  bringing  about  the  change, 
Nicolls  evinced  his  usual  good  sense  and  judgment  Willett,  who  was  sent  for  from 
Plymouth,  for  the  purpose  of  making  him  mayor,  was  an  Englishman,  but  thorough- 
ly conversant  with  the  Dutch  language.  He  had  been  employed  by  Stuyvesant  in 
important  negotiations ;  had  been  engaged  in  trade  with  New  Amsterdam  as  early 
as  1645  ;  and  was  well  acquainted  with  the  people,  and  with  their  usages  and  cus- 
toms. The  majority  of  the  aldermen,  moreover,  were  selected  from  the  Dutch  in- 
habitants, and  the  two  of  English  birth,  Delavall  and  Lawrence,  had  long  been  resi- 
dents of  New  Amsterdam,  and  spoke  the  language.  By  this  selection,  and  by  ap- 
pointing the  former  schout  to  the  office  of  sheriff,  there  was  little  in  the  new  organi- 
zation to  make  the  inhabitants  feel  that  any  sensible  change  had  taken  place.  It 
was  ordered  that  jury  trials  should  be  held  on  the  first  Tuesday  of  every  month; 
but  the*  institution  found  little  favor  with  the  Dutch — the  great  majority  of  suitors 
preferring  to  have  their  cases  summarily  disposed  of  by  the  judges,  in  the  manner 
to  which  they  had  been  accustomed — and  trials  by  jury  did  not  come  into  general 
use  in  the  court  until  many  years  afterwards. 

"Willett  bore  a  high  character  for  firmness  and  integrity,  and  was  an  able  and 
efficient  magistrate.  With  the  exception  of  introducing  the  trial  by  jury,  he  ad- 
hered to  the  practice  and  form  of  procedure  that  had  been  established  by  his  Dutch 
predecessors ;  and,  though  the  duke's  laws  were  as  binding  upon  the  mayor's 
court  as  upon  any  other  court  in  the  province,  no  attention  appears  to  have  been 
paid  to  them.  During  the  whole  period  of  Nicolls'  and  Lovelace's  government, 
justice  was  administered  according  to  the  Dutch  law ;  and  for  half  a  century  after- 
wards, many  of  the  principles  and  forms  of  procedure  peculiar  to  that  law,  continued 
to  be  recognized  and  followed  in  the  court.2 

In  1665,  the  court  of  burgomaster  and  schepens,  at  Harlsem,  was  abolished,  and 
a  town  court,  under  the  duke's  laws,  substituted  in  its  stead  ;  and,  in  the  same  yean 
Nicolls  entered  an  order  in  council,  not  then  designed  to  be  made  public,  by  which 
the  property  of  the  Dutch  inhabitants,  who  had  not  then  taken  the  oath  of  allegiance, 
was  declared  to  be  forfeited  to  the  crown.3  Willett  continued  as  mayor  for  three 
years.  His  two  successors,  Delavall  and  Steenwyck,  were  appointed  by  the  governor  ; 
but,  in  1669,  the  old  Dutch  form  of  nominating  a  double  set  of  magistrates  was  re- 
sumed. The  magistrates  then  in  office  nominated  to  the  governor  two  persons  for 


1  1  Eee.  of  Mayor's  Court,  1,  9,  26. 

2  Kecords  of  Mayor's  Court,  vols.  i.  ii. 

3  1  Eec.  of  Will*,  N.  Y.  Surrogate's  office,  in  which  this  decree  will  be  found  at  length. 


JUDICIAL   ORGANIZATION   OF   THE   STATE.  27 

each  office,  from  -whom  Lovelace  selected  those  who  were  to  serve  for  the  next  two 
years.  In  1670,  the  period  of  service  was  reduced  to  one  year;  after  which,  the 
magistrates  who  were  to  serve  for  the  coming  year  were  nominated  and  selected 
by  the  governor;  and  this  mode  of  appointing  them  annually  continued  until 
Dongan's  charter  was  granted,  fifteen  years  afterwards.  In  1669,  Jarnes  presented 
the  mayor  with  a  silver  mace,  and  each  of  the  aldermen  with  gowns ;  and,  in  1671, 
the  English  practice  of  requiring  a  proclamation  of  the  bans  of  marriage  having 
been  adopted,  a  formal  registry  of  them  was  kept  in  the  mayor's  court. 

There  was  no  court  of  chancery,  but  matters  in  equity  were  heard  in  any  of  the 
courts  organized  in  conformity  to  the  duke's  laws.  The  equitable  jurisdiction  of  the 
town  court  was  limited  to  five  pounds,  but  in  the  court  of  sessions  there  was  no 
limitation.  Proceedings  in  equity  were  conducted  by  bill  and  answer ;  witnesses  were 
examined  in  the  same  manner  as  was  customary  at  the  period  in  the  court  of 
chancery  in  England,  and  all  suits  in  equity  were  determined  by  the  court,  without 
the  intervention  of  a  jury.  This  mode  of  administering  legal  and  equitable  relief  in 
one  and  the  same  tribunal,  continued  for  many  years,  even  after  the  establishment 
of  a  court  of  chancery,  in  1683,  and  it  is  curious  to  note  that  we  have  returned  to  it 
again,  after  the  existence  of  a  distinct  court  of  equity  in  the  state  for  nearly  a 
century  and  a  half.  It  is  also  worthy  of  notice,  that  the  right  of  a  court  of  equity 
to  dissolve  the  marriage  contract  upon  the  ground  of  adultery,  a  jurisdiction  not 
assumed  by  the  court  of  chancery  in  England,1  was  recognized  in  this  state,  at  this 
early  period.  In  1671,  a  suit  was  brought  for  divorce,  for  the  adultery  of  the  wife, 
but  the  court  held  that  it  had  no  power  to  grant  one.  An  application  was  then 
made  to  Governor  Lovelace,  and  he  decreed  in  council  that  it  was  conformable  to 
the  laws  of  the  colony,  to  the  civil  law,  and  not  inconsistent  with  the  laws  of  Eng- 
land, that  the  marriage  should  be  dissolved  upon  proof  of  the  wife's  adultery,  and  he 
sent  the  case  back  to  the  court  to  take  proof  of  the  adultery.2  Chancellor  Kent  says, 
that  no  divorce  took  place  in  the  colony  of  New  York  for  more  than  one  hundred 
years  before  the  revolution ;  and  that  after  it  became  a  state,  there  was  no  lawful 
mode  of  dissolving  a  marriage  in  the  lifetime  of  the  parties,  but  by  a  special  act  of 
the  legislature,  until  by  the  act  of  1787,  the  power  was  conferred  upon  the  court  of 
chancery,  to  grant  divorces  a  vinculo  in  cases  of  adultery.3  The  Dutch  law  allowed 
a  divorce  for  adultery,4  and  such  divorces  had  been  granted  by  the  court  of  burgo- 
masters and  schepens.  Of  this,  doubtless,  Lovelace  was  advised,  when  he  declared 
it  to  be  the  law  of  the  colony,  but  it  would  seem  that  after  the  court  of  chancery 
was  created,  and  the  English  system  was  fully  established,  that  divorces  for  this 
cause  was  no  longer  granted  in  the  colony. 

On  the  9th  of  August,  1673,  the  city  was  retaken  by  the  Dutch,  after  it  had  been 
in  the  possession  of  the  English  for  nine  years.  Anthony  Colve  was  appointed 
governor,  the  old  name  of  the  province  was  restored,  and  the  name  of  the  city  was 
changed  to  New  Orange.  At  a  council  of  war,  held  by  the  commanders  of  the  Dutch 
expedition,  the  former  municipal  government  of  schout,  burgomaster  and  schepens  was 
re-established,  the  burgomasters  being  increased  to  three,  and  the  schepens  to  six,  and 


1  Dow's  Eep.  117.    Bisbop  on  Marriage  and  Divorce,  §  278. 

2  1  Dunlap,  App.  cxviii. 
8  2  Kent's  Com.  97. 

«  Vander  Linden's  Institutes  of  Holland,  88.    Van  Leuwen,  484. 


28  HISTORY   OF   THE   COURT   AND   OF   THE 

Colve  made  some  alterations  in  the  organization  of  the  court,  none  of  them,  however, 
of  sufficient  importance  to  be  enumerated.1  But  this  change  lasted  but  little  over 
a  year.  By  the  treaty  signed  at  London,  the  states  general  relinquished  the  pro- 
vince of  New  Netherland  to  the  English,  and  on  the  31st  of  October,  1674,  it  was 
formally  surrendered  by  Colve  to  Sir  Edmund  Andros,  as  the  representative  of  James, 
Duke  of  York.2 

In  the  instructions  given  by  James,  upon  the  departure  of  Audros,  he  wag  directed 
to  see  that  justice  was  administered  with  all  possible  equality,  without  regarding  aa 
to  their  private  concerns,  whether  the  parties  were  Dutch  or  Euglish.  "  It  being  my 
desire,''  said  James,  "  that  such  as  live  under  your  government  may  have  as  much 
satisfaction  as  possible,  and  that  without  the  least  appearance  of  partiality,  they 
may  see  their  just  rights  preserved  to  them  inviolably."  Andros  was  instructed  to 
put  into  execution  the  laws,  rules  and  ordinances  which  had  been  established  by 
Nicolls  and  Lovelace,  and  not  to  vary  from  them  except  upon  "  emergent  necessity," 
nor  then,  unless  upon  the  advice  of  his  council  and  of  the  "  gravest  and  most  ex- 
perienced persons"  in  the  colony.  The  choice  of  magistrates  and  officers  of  justice 
was  left  to  his  discretion,  except  that  he  was  required  to  select  those  of  "  the  most 
reputation  for  ability  and  integrity,  who,  for  those  reasons,  might  be  most  acceptable 
to  the  inhabitants."3  Upon  taking  possession,  Andros  changed  the  name  of  the  city 
and  the  province  again  to  New  York,  and  ordered  that  the  English  form  of  government, 
as  it  had  previously  existed  under  the  title  of  mayor,  aldermen  and  sheriff,  should  be 
restored,  and  that  all  magistrates  who  were  in  office  when  the  Dutch  took  possession, 
should  resume  their  duties,  and  continue  in  office  for  six  months  thereafter.4  The 
mayor's  court  was  accordingly  convened  on  the  13th  of  November  following.  Col. 
Matthias  Nicolls,  who  had  formerly  been  mayor,  resuming  the  duties  of  that  office, 
with  four  aldermen,  John  Lawrence,  William  Duvall,  Gabriel  Minviele,  Frederick 
Philippse,  two  of  whom  had  formerly  served  in  that  capacity.  An  order  was  made, 
that  the  records  should  thereafter  be  kept  in  English,  and  that  all  papers  submitted 
to  the  court  should  be  in  that  language,  except  in  the  case  of  poor  people,  who  could 
not  pay  for  a  translation.6 

OQ  the  6th  of  August,  1674,  James  transmitted  to  Andros  a  copy  of  the  laws  in 
force  under  Nicolls  and  Lovelace,  digested  in  one  volume,  accompanied  by  an  order 
requiring  him  to  put  them  in  execution,  except  "such  as  might  be  found  inconve- 
nient," with  power  to  make  alterations  and  amendments,  subject  to  James'  approval.6 
Upon  receiving  this  order,  Andros  published  a  proclamation,  declaring  that  the 
"  Book  of  Laws"  should  be  in  force  thereafter ;  that  the  courts  created  by  these  laws 
should  be  held  at  the  times  and  in  the  manner  pointed  out  by  them,  and  that  all 
civil  magistrates  should  be  chosen  thereafter  in  conformity  with  them.  By  this 
proclamation  all  the  former  courts  were  revived.  The  towns  courts  were  re-es- 
tablished, and  the  courts  of  sessions,  of  which  there  were  three,  two  upon  Long 
Island,  and  one  at  Esopus,  (Kingston.)  A  court  of  sessions  was  established  at 


1  Doc.  History  of  N.  Y.  390  to  395,  where  these  alterations  will  be  found. 

1  Dunlap,  129.    N.  Y.  Eec.  of  Burg,  and  Schepens,  vol.  vi. 
3  Col.  Doc.  217. 

Mayor's  Court  Rec.  vol.  iii.    1  Smith,  180. 

2  Mayor's  Court  Kec. 

3  Col.  Doc.  226. 


JUDICIAL  OBGANIZATION   OF  THE   STATE.  29 

Albany,  under  Nicolls,  in  1666;  this  also  appears  to  have  been  revived  by  Andros.  and 
afterwards  took  the  name  of  the  mayor's  court  Within  two  months  after  Andros 
put  forth  his  proclamation,  the  court  of  assize  was  held  in  the  city  of  New  York, 
upon  the  regular  day  fixed  by  the  duke'd  laws,  and  from  entries  of  appeals,  made  to 
it  from  inferior  courts,  it  would  seem  to  have  been  held  regularly  every  year,  for 
ten  years  thereafter,  with  but  one  or  two  exceptions,  though  no  regular  records  of 
the  court  could  be  found,  after  a  diligent  search  in  the  public  offices  at  New  York  and 
Albany.  In  addition  to  the  members  who  formerly  composed  it,  the  mayor,  recorder 
and  aldermen  of  New  York  sat,  by  virtue  of  their  authority,  as  justices  of  the  peace ; 
and  at  the  session  held  at  New  York  in  October,  1680,  twenty-nine  members  were 
present,  and  took  part  in  its  proceedings.  Andros,  who  was  a  good  lawyer,  was,  no 
doubt,  the  most  active  and  efficient  judicial  member  of  the  court.1  It  continued,  as 
before,  to  exercise  legislative  functions.  Indeed,  the  right  of  its  members  to  act  as 
legislators  was  recognized  by  James,  for  when  advised  by  Andros,  shortly  after  his 
arrival,  of  the  general  wish  for  a  provincial  assembly,  he  replied,  that  the  redress  of 
any  grievance  might  easily  be  obtained  by  a  petition  to  the  general  assizes,  "  where," 
said  he,  "the  same  persons  (as  justices)  are  usually  present,  who,  in  all  probability, 
would  be  their  representatives,  if  a  different  constitution  were  allowed."3  He  could 
see  no  use,  he  said  in  another  letter,  in  such  assemblies  ;3  but  at  the  same  time,  he 
was  watchful  to  see  that  justice  was  carefully  and  humanely  administered.  "  It  is 
not  unseasonable,"  wrote  Sir  John  Werdon  to  Andros,  "  though  it  may  be  unnecessary, 
to  put  you  in  mind  that  it  is  his  royal  highness'  intention  to  have  all  persons  treated 
with  all  humanity  and  gentleness  that  can  consist  with  the  honor  and  safety  of 
your  government,  to  the  end,  that  where  the  laws  do  inflict  a  punishment,  it  may 
seem  rather  for  example  to  deter  others  from  the  like  crimes,  than  to  afflict  the 
party  punished,  except  where  his  malice  appears  plainly  to  aggravate  his  offence."4 

The  establishment  of  the  code,  as  the  general  law  of  the  province,  produced  no 
material  change  in  the  mayor's  court,  though  some  approximation  was  made  to  the 
English  mode  of  proceeding.  Nicolls,  like  the  former  mayor,  Willett,  had  been  long 
a  resident  in  New  Amsterdam,  and  the  twelve  mayors  that  succeeded  him,  with  two 
exceptions,  were  of  Dutch  origin,  or  had  been  residents  of  New  Amsterdam,  under 
the  Dutch.  The  provision  requiring  all  papers  before  the  court  to  be  in  the  English 
language,  introduced  something  of  the  English  form  of  pleading,  but  it  was  so 
blended  with  the  Dutch  mode  as  to  be  scarcely  distinguishable  ;  and  it  was  not  until 
after  the  arrival  of  one  or  two  English  lawyers,about  1682,  that  special  pleading  came 
at  all  into  use.  In  fact,  the  English  forms  of  procedure  and  mode  of  practice  were 
not  brought  into  general  use  in  the  colony  until  the  time  of  Chief  Justice  Mompesson, 
that  is,  between  1704  and  1718.5  Nicolls,  and  the  aldermen  associated  with  him, 
continued  in  office  until  October,  1675,  when  Andros  granted  a  commission,  or  rather 
charter,  formally  reinstating  the  corporate  government  of  the  city,  increasing  the 
number  of  aldermen  to  six,  and  conferring  upon  the  corporation  "  full  power  and 


1  1  Chambers'  Introduction  to  Eevolt  of  North  American  Colonies,  144.    3  Col.  Doc.  231,  28T, 
288.    2  Bancroft,  42S. 

2  3  Col.  Doc.  230. 
8  3  Col.  Doc.  235. 
*  8  Col.  Doc.  237. 

5  Field's  Provincial  Court  of  New  Jersey,  56. 


30  HISTOEY   OF   THE   COUET   AND   OF   THE 

authority  to  keep  courts,  administer  justice,  and  rule  and  govern  the  inhabitants,  ac- 
cording to  the  laws  of  the  province,  and  the  privileges  and  practices  of  the  city.''1 
The  mayor,  with  any  four  aldermen,  were  authorized  to  sit  as  a  court  of  sessions, 
but  they  did  not  organize  any  separate  criminal  tribunal,  but  continued,  as  before, 
to  discharge  criminal,  civil  and  municipal  business  at  the  regular  sitting  of  the  court, 
•which  was  fixed  for  every  three  weeks;  and  an  order  was  made  that  all  causes  should 
be  tried  before  a  jury,  though  it  was  not  strictly  adhered  to.  The  most  beneficial 
features  of  the  Dutch  court  of  referring  causes  to  arbitrators,  was  continued  and 
practised  very  generally,  until  English  lawyers  began  to  increase  in  the  colony, 
•when  the  system  of  special  pleading  grew  more  refined  and  subtle,  and  arbitrations 
were  no  longer  resorted  to,  except  in  cases  of  accounts,  which  were  usually  referred 
to  three  persons,  at  first  styled  arbitrators,  and  afterwards  referees;  and  all  cases 
of  accounts  continued  to  be  so  referred  until  1772,  when  the  practice  was  perma- 
nently fixed  and  regulated  by  statute.2 

In  1678,  James  authorized  Andros  to  erect  a  court  of  admiralty.  No  regular 
tribunal  was^  established,  but  in  one  or  two  instances  Andros  issued  special  commis- 
sions for  the  trial  of  admiralty  causes;  and  in  other  cases  the  hearing  and  determina- 
tion of  matters  in  admiralty  was  left  to  the  mayor's  court.3 

In  1682,  Dongan  was  appointed  governor.     Through  the  advice  of  William  Penn, 

and  in  consequence  of  requests  made  to  him  by  men  of  every  rank  in  the  province, 

James  yielded  to  the  general  wish  for  a  representative  assembly,4  and  authorized 

Dongan  to  call  one,5  and  immediately  after  his  arrival,  a  general  assembly  was 

convened.     Though  the  power  to  create  courts  was  vested  in  the  new  governor,  by 

\  his  commission  and  instructions,  he  appears  to,  have  left  the  matter  entirely  to  the 

'  assembly.     That  body  met  in  October,  1683,  and  after  passing  a  charter  of  liberties 

and  privileges,  and  dividing  the  province  into  twelve  counties,  they  passed  an  act 

to  "  settle  courts  of  justice."6    This  act  created  four  distinct  tribunals — a  petty  court, 

for  the  trial  of  small  causes  for  every  town — a  court  of  sessions  for  each  county — a 

1    court  of  oyer  and  terminer,  or  general  good  delivery — and  a  court  of  chancery  for 

the  province  at  large. 

*  The  town  court  was  held  on  the  first  Wednesday  of  every  month,  by  three  persons 
commissioned  by  the  governor,  without  a  jury,  and  had  cognizance  of  action  of  debt 
and  trespass  when  the  amount  did  not  exceed  forty  shillings.  The  court^of  sessions 
was  held  by  three  justices  of  the  peace,  twice  a  year,  in  each  county,  except,  that  in 
the  county  of  Albany  it  was  held  three  times,  and  in  the  city  and  county  of  New 
York,  four  times  a  year.  In  the  city  of  New  York  it  was  held  by  the  mayor  and 
four  aldermen.  Like  the  former  court  of  sessions,  it  had  both  civil  and  criminal 
jurisdiction,  without  any  limitation  as  to  amount ;  and  all  cau^83~b~eforelt  were  tried 
by  a  jury.  There  was  attached  to  it  a  clerk,  known  as  the  clerk  of  the  sessions,  a 
marshall  and  a  crier.  The  court  of  oj^arjiLtfiraaUiej,'  was  composed  of  two  judges, 
commissioned  by  the  governor,  each  of  whom  held  a  circuit  of  the  court  in  every 


2  Eec.  of  Mayor's  Court 

Kec.  of  Mayors,  vols.  ii.  to  vii.    Laws  of  1772  and  1781. 

3  Col.  Doc.  260.    Eec.  of  Mayor's  Court,  vols.  ii.  and  iii. 

1  Chalmers'  Introduction  to  Eevolt  of  North  American  Colonies,  145.    1  Dunlap,  134. 
3  Col.  Doc.  331, 333. 

2  Eev.  Laws,  Appendix.    Mans.  Laws  of  1683,  in  N.  Y.  State  Library. 


JUDICIAL   ORGANIZATION   OF   THE    STATE.  31 

county  in  the  province  twice  a  year,  having  associated  with  him  four  of  the  justices 
of  the  peace  of  the  county,  and  in  the  city  of  New  York,  the  mayor,  recorder  and 
four  aldermen.  The  oyer  and  terminer  had  general  jurisdiction  in  cases  civil  and 
criminal,  triable  at  the  common  law,  and  was  the  general  appellate  court.  The 
court  of  chancery  was  held  by  the  governor  or  council,  with  power  in  the  governor 
to  appoint  a  chancellor  to  act  in  his  stead.  It  had  jurisdiction  of  all  matters  in 
equity,  and  was  declared  to  be  the  supreme  or  highest  court  in  the  province.  Im- 
mediately after  the  passage  of  this  act,  Governor  Dongan  appointed,  as  judges  of  the 
court  of  oyer  and  termiuer,  Matthias  Nicolls,  before  referred  to  as  mayor  of  the  city  of 
New  York,  and  Thomas  Palmer,  both  of  whom  were  lawyers  by  profession ;  and  com- 
missioners were  appointed  for  the  various  town  courts,  additional  justices  of  the  peace 
created,  and  sheriffs  and  other  officers  commissioned.1  In  the  following  year,  1 684,  the 
court  of  assize  was  abolished  by  an  act  of  the  general  assembly,  and  in  the  same  year, 
Thomas  Rudyard,  an  eminent  London  lawyer,  who  had  come  out  in  1682,  as  deputy 
governor  of  New  Jersey,  was  appointed  by  Dongan  to  the  office  of  attorney  general.52 

Upon  Dongan's  arrival  in  the  city  of  New  York,  he  dismissed  all  the  old  magis- 
trates, and  appointed  new  ones.  The  November  following  his  arrival,  the  mayor 
and  aldermen  presented  a  petition,  asking  a  confirmation  of  their  franchises  and 
privileges,  and  among  other  things,  that  the  city  should  be  divided  into  six  wards, 
that  the  freeholders  of  each  ward  should  have  power  to  elect>  an  alderman  and  a 
common  council  man,  with  other  local  officers ;  and  that  a  recorder  might  be  ap- 
pointed by  the  governor,  to  aid  and  assist  the  mayor.8  This  petition  Dongan  trans- 
mitted to  James,  but  he  complied  with  the  request  for  the  division  of  the  city  into 
wards,  and  for  the  appointment  of  a  recorder.4  On  the  14th  of  January,  1684,  he 
issued  a  commission,  appointing  James  Graham  to  the  office — an  office  which  he  con- 
tinued to  fill,  with  but  one  interruption,  for  seventeen  years  afterwards.5  On  the  day 
following  Graham's  appointment,  all  the  new  magistrates  went  in  a  body  to  the  fort, 
and  being  sworn  iu  before  the  governor  and  council,  returned  and  opened  court ;  "  the 
recorder,"  says  the  record,  "  taking  his  seat  on  ye  right  hand  of  ye  mayor." 

The  general  assembly  convened  by  Dongan  had  power  to  pass  laws,  subject  to  the 
approval  of  the  governor  and  the  duke.  Dongan  approved  the  laws  enacted  at  the 
two  sessions  of  1683  and  1684,  and  transmitted  them  to  England;  but  before  any 
action  was  taken  upon  them,  James  had  ascended  the  throne.  He  was  highly  dis- 
pleased with  the  conduct  of  the  general  assembly  in  passing  a  charter  of  liberties 
and  privileges;  the  matter  was  taken  up  in  council,  and  this  charter  rejected,  but 
the  other  laws  were  approved.6  The  passage  of  this  charter  was  enough  for  James. 
He  resolved  that  there  should  be  no  more  representative  assemblies,  and  accordingly 
a  new  commission  was  issued  to  Dongan,  in  1686,  by  which  all  legislative  power 
was  exclusively  vested  thereafter  in  the  governor  and  his  council,  subject  to  the 
approval  of  the  king  and  privy  council.  By  this  commission,  Dongan  was  specially 
empowered  to  erect  courts  of  law  or  equity,  if  necessary,  and  to  appoint  judges, 


N.  T.  Colonial  Mans.  vol.  xxiv. 

He  was  succeeded  in  1685  by  James  Graham,  Recorder  of  New  York,  who  appears  to  have 
been  succeeded  by  James  Emot,  a  prominent  lawyer  in  the  colony. 
London  Doc.    New  York  Papers,  i.  177.    2  Dunlap,  App.  cxxx. 
3  Col.  Doc.  339, 340. 
N.  Y.  Col.  Mans.  vol.  xxxiii. 
•  8  Col.  Doc.  257,  370. 


32  HISTORY  OF  THE  COURT  AND  OF  THE 

justices  of  the  peace  or  other  officers ;  and  in  the  instructions  accompanying  the  com- 
mission, he  was  directed  "  always  to  take  care  that  they  (the  judges)  be  men  of 
estate  and  ability,  and  not  necessitous  people,  or  much  in  debt,  and  not  to  displace 
judges,  justices  or  sheriffs,  without  good  and  sufficient  cause,  to  be  signified  to  the 
king ;  and  to  prevent  their  arbitrary  removal,  that  no  time  should  be  expressed  in 
the  commission  for  the  duration  of  their  offices."1 

The  act  "to  settle  courts  of  justice"  having  been  approved  by  the  king,  the  courts 
established  by  it  were  continued  regularly  thereafter,  the  only  change  Dougan 
made,  being  to  create  what  he  called  "  a  court  of  judicature,"  but  which  was,  in 
fact,  a  court  of  exchequer.  Having  found  great  difficulty  in  enforcing  the  payment  of 
the  king's  revenues,  from  the  imperfect  organization  of  distant  courts,  and  the 
intractability  of  country  jurors,  he  created  this  court,  which  was  held  by  the  governor 
and  council,  on  the  first  Monday  of  eveiy  month,  for  the  determination  of  suits  or 
matters  arising  between  the  king  and  the  inhabitants,  concerning  lands,  rents,  rights, 
profits  and  revenues.12  He  also  held,  together  with  his  council,  a  court  of  chancery. 
The  first  court  of  chancery  was  held  on  the  16th  of  February,  1683,  immediately 
after  the  passage  of  the  act  to  settle  courts  of  justice,  and  it  was  directed  to  be  held 
thereafter  on  the  first  Thursday  of  every  second  month,  or  six  times  a  year.3  By  the 
new  commission,  sent  out  to  him,  it  was  provided  that  appeals  should  be  allowed  in 
cases  of  error  from  any  of  the  courts  to  the  governor  and  council,  where  the  amonnt 
involved  exceeded  £100,  with  a  right  to  appeal  from  the  decision  of  this  tribunal 
to  the  king  and  privy  council,  where  the  amount  exceeded  £300.  The  judicial 
powers,  therefore,  of  the  governor  and  council,  were  threefold.  They  had  general 
jurisdiction  in  all  matters  in  equity,  eat  as  a  court  of  exchequer,  and  constituted  the 
final  court  of  appeal  of  the  province.  There  was  also,  at  this  period,  1686,  a  mayor's 
court,  at  Albany,  which  sat  every  fortnight,  from  which,  as  from  the  mayor's  court 
at  New  York,  an  appeal  might  be  brought  in  cases  above  £20.4  A  special  com- 
mission was  always  issued  for  holding  each  court  of  oyer  and  tenniner,  and  the  par- 
ticular judge  who  was  to  hold  it,  with  the  justices  of  the  peace  who  were  to  be 
associated  with  him,  were  named  in  the  commission.  At  the  close  of  the  circuit  or 
term,  the  written  pleadings  in  each  case,  with  all  orders  made,  records  of  judgment, 
in  short,  everything  that  took  place  before  it,  and  that  had  been  reduced  to  writing,  was 
tacked  to  the  commission,  and  enclosed  to  the  secretary  of  the  province,  and  placed 
on  file  as  the  official  record.  Of  the  two  regular  judges,  Nicolls  and  Palmer,  Dongan 
spoke  in  the  highest  terms.  In  a  report  made  by  him,  on  the  state  of  the  province 
in  1686,  he  says,  "their  management  has  been  such  by  arbitration,  and  such  other 
mild  courses,  that  where  there  were  ten  actions  formerly,  there  is  not  one  now."  It 
was  before  this  court  that  Leisler  was  tried  for  alleged  treason  and  rebellion  in 
usurping  the  government,  but  by  judges  specially  appointed.  It  continued  in 
existence  for  eleven  years. 

In  the  same  year  that  Dongan  received  this  new  commission,  he  granted  to  the 
city  of  New  York  the  well  known  charter  that  bears  his  name.5    By  this  charter 


3  Col.  Doc.  369. 

3  Col.  Doc.  390. 

N.  Y.  Col.  Mans.  Council  Minutes,  voL  v.  p.  48. 

8  Col.  Doc.  379,390. 

Kent's  Charter  and  note,  41—209. 


JUDICIAL   OKGANIZATION   OF   THE   STATE. 

it  was  provided  that  the  inhabitants  of  each  ward  in  the  city  should  elect  annually 
one  alderman,  one  assistant  alderman,  and  one  constable ;  and  that  the  mayor, 
recorder  and  sheriff  should  be  appointed  by  the  governor  and  council,  and  the 
high  constable  by  the  mayor.  The  mayor,  recorder,  and  any  three  or  more 
of  the  aldermen,  with  any  three  or  more  of  the  assistants,  were  created  a 
common  council,  which,  when  duly  convened,  was  authorized  to  pass  laws  and 
ordinances  for  the  government  of  the  city.  The  mayor,  recorder  and  aldermen,  or 
any  three  of  them,  of  whom  the  mayor  or  recorder  were  required  to  be  one,  were 
authorized  to  hold  within  the  city,  a  court  of  common  pleas,  upon  every  Tuesday, 
for  the  trial  of  all  actions  of  debt,  trespass,  or  trespass  upon  the  case,  detinue,  eject- 
ment, or  other  personal  action,  according  to  the  rules  of  the  common  law  and 
the  acts  of  the  general  assembly  of  the  province ;  and  it  was  provided  that  the 
mayor  or  recorder,  or  three  or  more  of  the  aldermen,  not  exceeding  five,  should 
be  justices  of  the  peace,  and  any  three,  of  whom  the  mayor  or  recorder  were  re- 
quired to  be  one,  were  empowered  "to  hear  and  determine  all  manner  of  petty 
larcenies,  riots,  routs,  oppression  and  extortions,  and  other  trespasses  and  offences 
ia  the  city." 

Up  to  the  time  of  granting  this  charter,  there  was  united  in  the  mayor's  court,  as 
had  formerly  been  the  case  under  the  Dutch,  the  twofold  function  of  a  council  or  board, 
for  the  regulation  of  the  municipal  affairs  of  the  city,  and  of  ,a  court  of  justice. 
Matters,  whether  legislative  or  judicial,  came  before  the  same  body,  and  no  distinction 
was  made,  except  that  it  was  usual,  after  the  business  of  the  court  was  gone  through 
with,  to  attend  to  municipal  affairs.  By  the  charter,  however,  a  separation  was 
made  between  the  legislative  and  judicial  functions  of  the  mayor,  recorder  and 
aldermen,  and  as  respects  their  judicial  powers,  there  was  a  further  separation 
between  the  powers  they  possessed,  as  criminal  magistrates,  and  those  which  they 
exercised  as  judges  in  civil  cases.  Three  tribunals  were  accordingly  organized,  each 
composed  of  the  same  persons,  but  each  tribunal  having  duties  assigned  to  it  wholly 
distinct  and  different  from  the  others.  These  were  the  common  council,  the  mayor's 
court,  for  though  called  in  the  charter  the  court  of  common  pleas,  it  still  retained  its 
former  title,  and  the  sessions.  In  the  common  council  was  vested  exclusively  the 
power  of  passing  laws  and  ordinances  for  the  government  of  the  city.  The  mayor's 
court  was  for  the  trial  of  civil  actions  only,  and  under  the  provisions  of  the  charter 
authorizing  the  mayor,  recorder  and  aldermen  to  try  criminal  offences,  a  criminal 
tribunal  was  organized,  at  first  denominated  the  quarter  sessions,  and  after  1688,  the 
court  of  sessions.1  As  has  been  previously  stated,  a  court  of  sessions  was  established 
in  the  city  by  the  act  to  settle  courts  of  justice,  which,  like  the  same  courts  in  the 
other  counties,  had  both  civil  and  criminal  jurisdiction.  It  was  in  view  of  the 
establishment  of  this  additional  court  in  the  city,  and  from  the  desire  to  have  a  per- 
manent law  officer  attached  to  the  corporation,  who  should  not  go  out  upon  the 
annual  change  of  magistrates,  that  the  mayor  and  aldermen  applied  to  Dongan,  in 
1683,  to  appoint  a  recorder.  Immediately  after  the  appointment  of  Graham,  this 
court  was  organized  by  the  mayor,  recorder  and  aldermen,  the  recorder  presiding  as 
the  chief  officer,  and  as  it  sat  but  once  every  three  months,  while  the  mayor's  court  sat 
every  two  or  three  weeks,  it  was  deemed  a  court  of  a  higher  grade,  in  which  at  first, 


Rec.  of  N.  T.  Quarter  Sessions,  vol.  i.    Bee.  of  N.  Y.  Court  of  Sessions,  1688. 


34:  HISTORY    OF   THE   COURT   AND    OF   THE 

the  more  important  civil  actions  were  brought,  and  the  principal  criminal  offences 
tried.  It  continued  in  existence  three  years,  but  by  that  time  it  was  apparent  that 
the  mayor's  court  and  the  oyer  and  terminer  was  sufficient  for  the  dispatch  of  the 
legal  business  of  the  city.  The  circuit  of  the  oyer  and  terminer  was  held  in  the  city 
twice  a  year,  and  as  the  mayor's  court  had  equal  jurisdiction  with  the  court  of  ses- 
sions, with  the  advantage  of  sitting  more  frequently,  there  was  comparatively  little 
for  the  court  of  sessions  to  do.  It  was  not,  therefore,  embraced  in  the  general  pro- 
vision made  by  the  charter,  nor  yet  was  it  repealed.  The  act  creating  it  had  been 
passed  by  the  general  assembly,  had  been  signed  by  Dongan  before  he  granted  the 
charter,  and  subsequently  ratified  by  James.  It  was  not,  consequently,  in  Dongan 's 
power  to  repeal  it,  but  with  the  general  acquiescence  of  all  parties,  the  court  seems 
to  have  been  dropped,  and  the  quarter  sessions,  as  a  court  of  exclusive  criminal  juris- 
diction, substituted  in  its  stead. 

In  1688,  Dongan,  the  most  independent  and  liberal  minded  of  all  our  governors,  was 
recalled,  and  lieutenant  governor  Nicholson  left  in  charge  of  the  province.  At  the 
close  of  the  same  year,  William  Prince  of  Orange  landed  in  England,  James  aban- 
doned his  throne,  and  the  government  of  William  and  Mary  was  established.  When 
the  news  of  this  event  reached  New  York,  the  populace,  apprehensive  that  the  lieu- 
tenant governor  and  his  council  were  unfriendly  to  the  Prince  of  Orange,  and  ex- 
cited by  a  rumor  that  Nicholson  designed  to  massacre  the  Protestants,  and  declare 
for  James,  armed  themselves,  and  under  the  direction  of  Jacob  Leisler,  took  posses- 
sion of  the  government  by  force,  and  Leisler,  after  organizing  a  council,  and  pro- 
claiming William  and  Mary,  held  the  province,  and  administered  its  affairs  until  the 
arrival  of  Governor  Sloughter,  in  1691.  During  the  twenty  one  months  of  Leisler' s 
administration  he  issued  several  commissions  for  courts  of  oyer  and  terminer  at  New 
York,  and  upon  Long  Island,  and  appointed  Peter  De  Lanoy  a  member  of  his  coun- 
cil and  the  mayor  of  the  city,  chief  judge  of  the  oyer  and  terminer.1  The  adherents 
of  William  and  Mary  were  divided  into  two  factious — the  Dutch  and  French  party — 
headed  by  Leisler  and  the  English  Episcopalians,  known  as  the  anti  Presbyterian 
party,  in  which  were  included  all  who  had  been  in  power  under  Dongan  or  Nichol- 
son ;  and  the  latter  having  secured  the  confidence  of  Sloughter,  Leisler  and  Mil- 
bourne,  his  son-in-law  and  chief  adviser,  were  brought  to  trial  before  a  special 
court  of  oyer  and  terminer,  for  alleged  usurpation  of  the  government,  convicted  and 
executed.2 

By  his  commission  from  William  and  Mary,  Sloughter  was  authorized  to  convene  a 
representative  assembly,  which  he  accordingly  did,  and  this  body  met  in  the  beginning 
of  1 69 1 .  They  do  not  appear  to  have  understood  the  precise  effect  of  the  act  of  settle- 
ment, even  if  they  were  at  that  time  informed  of  its  adoption  ;3  and  being,  moreover, 
under  the  erroneous  impression  that  none  of  the  acts  of  the  general  assembly  of  1683 
and  1684  had  been  affirmed  by  James,  and  were  therefore  null  and  void,  they  passed 
an  act  for  the  general  judicial  re-organization  of  the  province.4  This  act  changed  the 


1  2  Doc.  Hist  of  N.Y.  86, 164. 

2  Papers  in  2  Doc.  Hist,  of  N.Y.  from  page  3  to  250.    1  Dunlap,  150  to  211.    1  Smith,  90  to  111. 

3  Hume,  chap.  Ixxi.     Journals  of  Assembly  of  1691. 

*  This  act  will  be  found  in  the  first  edition  of  the  colonial  laws,  printed  by  Bradford,  in  1C94;  the 
only  perfect  copy  of  which  now  supposed  to  exist  is  in  the  library  of  a  private  gentleman  in  New 
York.  It  has  also  been  reprinted  in  the  appendix  to  2  Paine  and  Duer's  Practice,  715. 


JUDICIAL   ORGANIZATION   OF   THE    STATE.  35 

town  courts  into  courts  of  justices  of  the  peace,  created  a  court  of  common  pleas  for 
each  county,  except  the  counties  of  New  York  and  Albany,  to  be  held  by  a  judge 
commissioned  by  the  governor,  and  courts  of  general  sessions  of  the  peace  for  each  of 
the  counties,  and  made  the  same  provision  for  a  court  of  chancery,  which  had  been 
made  by  the  act  of  1688.     But  the  most  important  feature  in  this  act  was  the  crea- 
tion of  the  present  supreme  court.     It  declared  that  a  supreme  court  of  judicature    | 
should  be  established  In  the  city  of  New  York,  to  be  composed  of  a  chief  justice  / 
and  four  assistant  justices,  to  be  appointed  by  the  governor,  and  that  it  should  have 
cognizance  of  all  actions,  civil,  criminal  or  mixed,  as  fully  and  amply  as  the  courts  of 
king's  bench,  common  pleas  or  exchequer  in  England,  and  should  have  power  to 
establish  rules  and  ordinances,  and  to  regulate  the  practice  of  the  court.     By  this 
act,  courts  of  general  sessions  of  the  peace  were  organized  as  criminal  tribunals, 
distinct  and  separate  from  the  courts  of  common  pleas,  which  were  courts  for  the 
trial  of  civil  actions  only.     In  all  the  counties,  except  New  York  and  Albany,  the 
courts  of  general  sessions  of  the  peace  were  held  twice  a  year ;  in  Albany  three 
times  a  year;  and  the   court  of  sessions  in  the  city  of  New  York  was  held  four 
times  a  year.    The  civil  jurisdiction  of  the  court  of  common  pleas  was  essentially 
the  same  as  that  of  the  former  court  of  sessions ;  and  the  term  of  the  court  began 
on  the  day  after  the  sitting  of  the  general  sessions— the  terms  of  both  courts  being       -. 
limited  to  two  days  each.     By  this  act,  the  court  of  oyer  and  terminer  was  abolished  ;  I 
but  in  conformity  to  the  organization  of  the  courts  of  Westminster,  its  name  was  re-   /    \ 
taiued,  to  designate  the  criminal  circuit  of  the  supreme  court. 

Immediately  upon  the  passage  of  this  act,  the  supreme  court  was  organized,  and 
Joseph  Dudley  appointed  chief  justice,1  Thomas  Johnson  second  judge,  and  William 
Smith,  Stephen  Van  Gortland  and  William  Pinthorne,  associate  justices.  Thomas 


1  JOSEPH  DUDLEY,  the  first  chief  justice  of  tlie  state,  was  the  son  of  Governor  Dudley  of  Massa- 
chusetts. He  was  born  in  ICiT,  and  graduated  at  Harvard.  Having  been  designed  by  his  parents 
for  the  ministry,  he  studied  divinity,  but  the  limited  sphere  and  unostentatious  life  of  a  New  Eng- 
land clergyman,  at  that  period,  presented  no  attraction  to  a  man  of  his  worldly  views  and  ambi- 
tion. He  accordingly  gave  up  divinity,  entered  into  political  life,  and  was  shortly  after  elected  a 
delegate  from  lloxbury.  In  1632,  he  was  the  agent  of  the  colony  of  Massachusetts,  in  England, 
and  upon  the  union  of  Massachusetts  and  New  Hampshire  under  one  government,  in  16S5,  he 
returned  to  Boston,  and  was  made,  under  Andros,  president  of  the  governor's  council ;  at  which 
period  he  is  enumerated  by  Dongan,  as  among  a  very  few  who  might  be  relied  upon  as  loyal  and 
well  affected  to  the  king.  Throughout  the  adminis'.ration  of  Andros,  he  supported  all  the  measures 
of  that  unpopular  governor ;  and  as  he  presided  as  judge  upon  political  trials,  was  especially  service- 
able in  enforcing  the  despotic  colonial  policy  of  James.  "When  the  people  of  Boston  rose  against 
the  government  of  Andros,  upon  receiving  intelligence  of  the  revolution  in  England,  of  1683,  and 
of  the  declaration  of  the  Prince  of  Orange,  Dudley,  with  other  obnoxious  persons,  was  thrown  into 
prison.  To  a  more  scrupulous  or  less  indefatigable  man,  the  downfall  of  James,  and  the  part  he 
had  played  under  his  government,  would  have  cut  off  all  hopes  of  immediate  advancement; 
but  Dudley  was  no  sooner  released  from  prison,  than  he  went  to  England,  and  ingratiated  himself 
so  fully  into  the  favor  of  the  new  ministry,  that  in  little  more  than  a  year  he  received  an  appoint- 
ment as  a  member  of  the  council  for  New  York,  with  the  promise  of  a  judicial  station  when  the 
government  of  Sloughter  should  be  fully  established.  Upon  his  arrival  in  New  York,  at  the  close 
of  1090,  he  at  once  joined  the  anti  Leislerian  party,  and  upon  the  arrival  of  Governor  Sloughter, 
in  1691,  he  was  placed  at  the  head  of  the  special  commission  of  the  oyer  and  terminer,  for  the  trial 
of  Leisler,  which  he  conducted  as  chief,  or  principal  judge.  After  the  passage  of  the  act  above  re- 
ferred to,  he  was  appointed  chief  justice;  but  the  Leislerian  party  having  obtained  the  mastery  in 
1692,  he  left  the  province,  and  was  shortly  thereafter  removed  by  Governor  Fletcher  from  the 
office  of  chief  justice,  and  Chief  Justice  Smith  appointed  in  his  place.  This  second  reverse  of 

D 


36  HISTORY   OF   THE   C«URT   AND   OF   THE 

Newton  was  appointed  attorney  general,  but  he  held  but  for  a  month,  and  was  suc- 
ceeded by  James  Graham,  recorder  of  New  York,  who  had  previously  filled  the 
office.1 

This  act  took  effect  but  for  two  years  ;  but  in  the  following  session  of  the  general 
assembly,  in  1692,  an  act  was  passed  renewing  it  for  one  year  longer,  with  an  addi- 
tional provision,  that  the  supreme  court  should  sit  twice  every  year  in  the  city  of 
New  York,  on  the  first  Tuesdays  of  April  and  October,  and  continue  in  session  five 
days;  and  that  one  of  the  justices  of  the  court  should  annually  go  the  circuit,  and 
hold  a  court  at  least  once  a  year,  if  need  should  require,  in  the  other  counties.2 

As  thus  organized,  with  a  fixed  tribunal  established  at  New  York,  and  an  annual 
circuit  made  by  one  of  the  justices  through  the  other  counties,  the  court  was  con- 
tinued by  successive  re-enactments  of  one  or  two  years  each,  until  1698. 

In  that  year  the  act  of  renewal  expired.  Governor  Bellamont  called  the  atten- 
tion of  the  assembly  to  the  fact ;  but,  becoming  dissatisfied  with  its  proceedings,  he 
dissolved  it  before  any  action  was  taken.  Another  assembly  was  convened  in  1699, 


fortune,  however,  was  but  of  temporary  duration.  He  again  went  to  England,  in  1C93,  and  in  a. 
very  short  time  became  a  member  of  parliament  for  Newtown,  where,  some  years  afterwards,  he 
made  strenuous  but  ineffectual  opposition  to  the  reversal  of  Leisler's  attainder.  He  sat  in  par- 
liament for  eight  years,  during  which  time  he  was  appointed  lieutenant  governor  of  the  Isle  of 
Wight  He  had  now  reached  a  position  that  might  have  satisfied  a  man  of  ordinary  ambition ; 
but,  to  quote  the  language  of  a  New  England  writer,  he  preferred  to  be  the  first  man  in  New 
England,  to  any  subordinate  position  in  the  mother  country ;  and,  accordingly,  inlT02,  he  received 
a  commission  from  Queen  Anne,  appointing  him  governor  of  Massachusetts.  lie  was  governor 
of  Massachusetts  for  thirteen  years,  and  died  in  1720,  after  a  life  marked  by  many  vicissitudes  and 
changes,  at  the  age  of  72.  Governor  Dudley,  or,  as  he  is  usually  designated  by  Massachusetts 
•writers,  the  second  Governor  Dudley  was,  in  an  intellectual  point  of  view,  a  highly  accomplished 
man.  He  had  the  advantage  cf  an  excellent  education  at  his  outset  in  life ;  had  studied  divinity 
and  law ;  afterwards,  and  in  an  age  distinguished  for  its  activity  in  metaphysical  inquiries, 
he  was  attracted  to  and  devoted  much  of  his  time  to  the  cultivation  of  philosophy.  His  love  of 
study,  however,  and  the  extensive  knowledge  he  had  acquired,  had  little  effect  upon  his  character, 
for  he  was  essentially  a  wordly  minded  man,  with  whom  the  possession  of  power  and  of  exalted 
station  was  the  chief  end  and  object  of  life.  Struggling  throughout  the  principal  part  of  his  career 
for  power  and  place,  he  was  not  over  scrupulous  as  to  the  means  he  employed.  Cringing  with 
low  servility  to  those  he  despised,  and  using  the  information  he  possessed,  secretly,  to  the  disad- 
vantage of  the  interests  of  the  colonies,  when  he  expected  thereby  to  forward  his  own.  The  thir- 
teen years  that  he  was  governor  was  the  most  useful  and  blameless  period  of  his  life ;  but  his 
antecedents  had  been  such,  that  his  government  was  bitterly  assailed  by  his  enemies;  unfounded 
charges  of  corruption  were  made  against  him,  and  he  was  frequently  referred  to  as  mainly  respon- 
sible for  the  guilt  of  Leisler's  blood,  and  held  up  to  public  execration  as  a  common  murderer.  It 
is  to  be  taken  in  vindication  of  his  character,  that  if  he  was  fiercely  assailed  by  his  enemies,  he 
•was  warmly  supported  and  steadfastly  adhered  to  by  his  friends  ;  and  that  some  of  his  good  quali- 
ties were  so  prominently  conspicuous,  as  to  be  fully  acknowledged  by  those  who  were  opposed  to 
him.  As  a  public  man,  he  was  exacting  and  ceremonious ;  diligent  in  the  discharge  of  the  duties 
of  his  station,  and  disposed  to  administer  public  affairs  uprightly,  where  it  did  not  conflict  too  much 
with  his  own  interests.  Throughout  his  life  he  was  scrupulous  in  the  observance  of  the  outward 
conventionalities  of  religion ;  and  in  the  latter  part  of  it,  had  the  reputation  of  being,  and  may 
have  been,  a  sincere  Christian.  In  all  that  belongs  to  the  domestic  duties,  and  in  the  more  private 
relations  of  life,  his  conduct  would  seem  to  have  been  unexceptionable ;  and  his  character  is  very 
well  summed  up  by  the  remark  of  Hutchinson,  that  he  had  as  many  private  virtues  as  was  con 
sistent  with  a  man  of  his  wordly  aims  and  aspiring  ambition.  3  N.  T.  Col.  Doc.  364,  note.  1 
Smith,  123.  2  Hutchinson's  Mass.  193.  Allen's  Biographical  Dict'y,  350.  2  Bancroft,  427,  445. 

1  8  Col.  Doc.  716.    1  Smith,  116.    1  Dunlap,  213. 

2  Mans.  Laws  of  1692,  in  N.  T.  State  Library.    This  act  is  printed  in  Bradford's  first  edition 
of  the  laws,  1694. 


JUDICIAL   ORGANIZATION   OF   THE   STATE.  37 

and  a  bill  for  the  further  continuation  of  the  courts  was  passed,  with  alterations  and 
amendments,  and  sent  to  the  governor.1  Bellamont  was  of  opinion  that  the  original 
act  had  been  designedly  altered  by  the  assembly,  as  a  party  movement,  by  the 
insertion  of  inconsistent  amendments,  and  of  provisions  repugnant  to  the  laws  of 
England,  for  the  purpose  of  compelling  him  to  reject  it,  that  the  province  might  be 
left  without  any  judicial  tribunals,  and  the  responsibility  thrown  upon  him.  He 
refused  his  assent,  and  the  assembly  declining  to  take  any  further  action  in  the 
matter,  immediately  adjourned.  The  province  was  now  without  courts,  and  the 
assembly  appeared  to  have  gained  their  object;  but  in  all  the  governor's  commis- 
sions, from  the  time  of  Dongan,  there  was  a  general  provision  authorizing  them  to 
erect  and  establish  courts.  A  provision  to  this  effect  existiag  in  Bellamont's  com- 
mission, he  called  in  Chief  Justice  Smith,  and  Graham,  the  attorney  general,  and 
advised  with  them  as  to  the  extent  of  his  powers.  They  were  of  opinion  that  the 
king  could  not  establish  courts  of  justice  by  his  own  authority,  without  the  concur- 
rence of  parliament,  and  that  what  he  was  incapable  of  doing  himself,  he  could  not 
delegate  to  his  governors.  But  Bellamont  had  little  confidence  in  the  opinion  of 
either  Smith  or  Graham,  neither  of  whom  had  been  educated  as  lawyers;  and  he 
replied,  that  as  all  the  commissions  were  prepared  under  the  supervision  of  the 
attorneys  general,  and  were  passed  under  the  eyes  of  the  chancellors,  such  a  provision 
would  not  have  been  inserted  or  suffered  to  remain,  unless  the  power  formed  a  part 
of  the  king's  prerogative  ;2  and  accordingly,  on  the  15th  of  May,  1699,  he  published  an 
ordinance,  with  the  concurrence  of  his  council,  re-establishing  all  the  courts,  precisely 
as  they  had  existed  under  the  amendatory  act  of  1692,  and  the  acts  in  continuation.3 

Lord  Bellamont  died  in  1701,  and  in  the  interval  between  his  death  and  the  arrival 
of  Lord  Cornbury,  the  government  was  assumed  by  Lieut.  Governor  Nanfan.  Be- 
fore Cornbury's  arrival,  William  Attwood  came  out  as  chief  justice,  having  been 
appointed  to  the  office  by  the  king,  bringing  with  him  a  commission  from  the 
lords  of  the  admiralty,  authorizing  him  to  act  as  judge  in  admiralty.4  Though  pro- 
vision was  made  for  a  court  of  chancery  by  Bellamont's  ordinance,  no  court  was 
established.5  Bellamont  was  anxious  to  erect  one,  but  he  seems  to  have  been  doubt- 
ful in  respect  to  his  powers,  as  he  wrote  home  that  many  were  likely  to  be  ruined  for 
the  want  of  such  court;  but  that  he  could  not  hold  one  without  the  presence  of 
five  of  his  council,  and  that  that  number  rarely  attended.6  Accordingly,  the  lords  of 
trade  sent  out  an  order  to  establish  the  court,  upon  receiving  which,  Nanfan,  on  the 
2d  of  April,  1701,  published  an  ordinance  erecting  a  court  of  chancery,  to  be  com- 
posed of  the  governor  and  council,  or  any  two  of  the  board,  to  be  held  on  the  first 
Thursday  of  every  month ;  and  he  appointed  a  register,  clerks  and  masters.7 

This  ordinance  was  strongly  opposed  by  the  assembly,  who  denied  the  right  of 
the  king  to  erect  a  court  of  equity  in  the  province  ;  and  in  the  following  year  a  peti- 
tion was  presented  by  William  Hallett  and  others,  to  the  assembly,  complaining  of 
the  erection  of  the  court,  of  the  exorbitant  fees  taken  by  its  officers,  and  of  its  arbi- 


1  Jour,  of  Ass.  1698  and  1699. 

2  4  Col.  Doc.  515. 

3  This  ordinance  will  be  found  in  the  appendix  to  2  Kev.  Laws  of  1818,  No.  5. 
*  4  Col.  Dec.  1000.    Jour,  of  Ass.  1701-2.    1  Smith,  163. 

6  4  Col.  Doc.  828. 
«  4  Col.  Doc.  884. 

7  4  Col.  Doc.  885.    1  Smith,  158.    1  John.  Ch.  E.  preface. 


38  HISTORY   OF   THE   COURT   AND   OF   THE 

trary  and  unjust  decrees.1  On  the  arrival  of  Lord  Cornbury,  in  1702,  an  order  was 
made  in  council  suspending  the  court,  until  the  governor  and  council  should  deter- 
mine upon  such  a  regulation  of  its  proceedings  as  would  be  "  most  agreeable  to 
justice  and  equity  ;"  and  the  matter  was  referred  to  Chief  Justice  Attwood,  and  De 
Peyster,  the  second  justice  of  the  supreme  court,  who,  after  having  the  subject  before 
them  for  nearly  two  years,  sent  in  a  report,  including  a  table  of  fees,  upon  the  re- 
ceipt of  which,  Cornbury  published  an  ordinance,  on  the  7th  of  November,  1704, 
reviving  and  re-establishing  the  court,  which  he  declared  should  be  conducted  there- 
after according  to  the  method  of  the  high  court  of  chancery  in  England.2  Two  sessions 
of  the  supreme  court  at  the  city  of  New  York  having  been  found  insufficient  for  the  dis- 
patch of  public  business,  he  also  published  an  ordinance  in  the  same  year,3  directing  that 
the  supreme  court  should  hold  four  terms  a  year,  of  five  days  each,  in  the  city  of  New 
York,  on  the  first  Tuesdays  in  March,  June,  September  and  October,  or  at  such  other 
places  as  the  governor  and  council  might  by  proclamation  appoint ;  by  virtue  of 
which  ordinance,  the  supreme  court  and  the  court  of  chancery  were  held  down  to  the 
time  of  the  revolution. 

After  Lord  Lovelace  came  out  as  governor,  in  1708,  the  opposition  to  the  court  of 
chancery  was  renewed.  In  that  year  the  assembly  resolved  that  the  establishing  of 
such  a  court,  without  the  consent  of  the  legislature,  was  contrary  to  law,  without 
precedent,  and  dangerous  to  the  liberty  of  the  subjects;4  and  it  would  seem,  that 
upon  the  governor's  death,  which  occurred  shortly  after  his  arrival,  and  during  the 
somewhat  irregular  administration  of  Ingoldsby,  that  the  court  again  fell  into  dis- 
use. This  was  brought  to  the  notice  of  the  lords  of  trade  and  plantations,  to  whom 
the  management  of  the  colonies  was  chiefly  entrusted,  and  when  Governor  Hunter 
was  sent  out  in  1710,  his  attention  was  called  to  the  subject;  and,  shortly  after  his 
arrival,  he  re-established  the  court,  appointing  two  masters,  two  clerks,  an  examiner 
and  a  register,  and  took  upon  himself  the  office  of  chancellor.6  This  again  roused 
the  opposition  of  the  assembly.  They  passed  resolutions,  declaring  the  illegality  of 
the  court,  and  sent  a  memorial  on  the  subject  to  the  lords  of  trade  and  plantations  5 
but  it  was  followed  by  an  answer  declaring,  that  the  erecting  of  a  court  of  equity 
by  the  governor,  with  the  advice  of  his  council,  was  pursuant  to  the  power  granted 
by  her  majesty,  under  the  great  seal  of  Great  Britain ;  and  that  the  resolves  of  the 
assembly  were  very  presumptuous,  and  a  diminution  of  her  majesty's  royal  preroga- 
tive, for  that  her  majesty  had  a  right  to  erect  as  many  courts  in  the  plantations  as 
ehe  should  think  necessary  for  the  purposes  of  justice.6 

"While  the  most  decided  hostility  to  the  court  was  thus  manifested  by  the  inhabit- 
ants of  New  York,'  a  very  different  feeling  prevailed  among  the  people  of  New 
Jersey,  where  no  such  tribunal  existed.  At  this  very  period,  1713,  Hunter,  in 
writing  home  to  the  lords  of  trade  and  plantation,  says,  that  the  people  of  the  Jerseys 
"  beg  and  crave  for  a  court  of  chancery."7  The  true  ground,  no  doubt,  of  the  hostility 
to  the  court  in  New  York,  was  the  one  assigned  many  years  afterwards  by  Governor 


N.  Y.  Jour,  of  Ass.  1702. 

2  JBev.  Laws,  1813.    App.  xiii. 

3d  of  April,  1T04.   6  Col.  Doc.  409.    2  Eev.  Laws,  1813.    App.  No.. 6. 

Jour,  of  Ass.  of  N.  Y.  1T04,  p.  224. 

Lon.  Doc.  xxiv.  880.    1  Smith,  220. 

Pamphlets  of  N.  Y.  Hist.  Soc.  series  C.  No.  2.    1  Smith,  220.    1  Dunlap,  280. 

4  Col.  Doc.  861. 


JUDICIAL  ORGANIZATION  OF  THE   STATE.  39 

Cosby.1  The  quit  rents  reserved  upon  the  sale  of  all  lands,  belonged,  as  a  preroga- 
tive to  the  crown ;  and,  through  the  neglect  of  the  governors,  who  were  mainly  oc- 
cupied in  enriching  themselves,  these  rents  had  been  suffered  to  run  greatly  in  arrear. 
"When  the  diminution  in  the  king's  revenue  began  to  be  sensibly  felt,  orders  were 
sent  out  to  collect  the  quit  rents,  and  the  court  of  chancery  and  the  exchequer 
branch  of  the  supreme  court  were  resorted  to,  to  compel  payment.  If  the  rents  had 
been  collected  as  they  had  fallen  due,  payment  would  have  been  readily  made ;  but  the 
people  had  enjoyed  their  immunity  so  long,  and  the  rents  had  accumulated  to  such 
large  sums,  that  the  payment  of  what  had  accrued  was  looked  upon  as  a  burden,  and 
the  attempt  to  enforce  it  awakened  a  feeling  similar  to  that  so  recently  exhibited 
in  the  late  anti-rent  movement.  There  was,  in  addition  to  this,  another  reason 
for  the  prevailing  hostility  to  the  court  of  equity.  The  governors,  almost  with- 
out an  exception,  were  men  of  impaired  fortunes,  or  adventurers,  who  accepted 
the  appointment  in  the  hope  of  enriching  themselves.  As  the  salary  was  small,  the 
only  means  of  making  the  office  profitable,  was  by  granting  patents  of  land,  and  re- 
ceiving from  the  grantee  a  gratuity,  or,  what  in  this  day  would  be  called  a  bribe,  in 
proportion  to  the  value  or  extent  of  the  tract  granted.  In  this  way  immense  tracts 
had  been  disposed  of — some  of  them,  to  use  the  language  of  an  authority  of  the  day, 
"  as  big  as  provinces  "2 — a  few  of  the  governors,  like  Clarke,  amassing  large  fortunes. 
The  manner  in  which  these  grants  were  made,  was  undoubtedly  a  fraud  upon  the 
rights  of  the  crown ;  and,  as  fears  were  entertained  that  proceedings  might  one  day 
be  instituted  by  the  attorney  general,  in  the  court  of  equity,  to  invalidate  these 
titles,  nearly  all  the  large  landed  proprietors  of  the  colony  had  a  common  interest  to 
get  rid,  if  possible,  of  this  dreaded  jurisdiction.  In  the  long  controversy  respecting 
the  equity  courts,  these  reasons  were  not  ostensibly  put  forth ;  but  that  they  lay  at 
the  bottom  of  the  movement,  at  least  at  the  beginning  of  it,  there  is  little  reason 
to  doubt. 

From  1713  to  1727,  the  court  of  chancery  was  regularly  continued;  but  in  1727, 
several  important  decrees  made  by  the  court,  gave  rise  to  loud  and  general  com- 
plaint ;  and  at  the  meeting  of  the  assembly,  the  committee  on  grievances  reported, 
that  through  the  violent  measures  taken  in  and  allowed  by  the  court,  several  persons 
had  been  ruined,  others  obliged  to  abandon  the  colony,  and  that  many  had  been  re- 
strained from  departing  from  it,  by  imprisonment  and  by  excessive  bail,  even  when 
no  suits  were  depending  against  them,  and  that  they  were  of  opinion  that  the  exor- 
bitant fees  countenanced  and  exacted  by  its  officers  and  practitioners,  had  made  it 
the  greatest  grievance  and  oppression  the  colony  had  ever  felt;  and,  after  passing  a 
resolution,  declaring  the  illegality  of  the  court,  they  resolved,  that  at  their  next  meet- 
ing they  would  prepare  and  pass  an  act,  declaring  and  adjudging  all  orders  and  ordi- 
nances, devices  and  proceedings  of  the  court,  to  be  null  and  void.3  The  leading  man 
in  this  movement  in  the  assembly  was  the  speaker,  Adolph  Phillipse.  He  had  re- 
cently lost  a  suit  in  the  court  of  chancery ;  and  Governor  Burnett,  as  chancellor,  had 
signed  the  decree  against  him  but  two  days  before  the  passage  of  these  resolutions. 
Burnett,  indignant  that  a  branch  of  the  legislature  should  allow  themselves  to  be  in- 
fluenced against  the  court  by  a  defeated  party  to  a  suit,  dissolved  the  assembly ; 


1  Lon.  Doc.  xxiv.  880. 

3  Lon.  Doc.  xxiv.    Morris  Letter. 

3  Journals  of  Col.  Assembly,  for  1T27.    2  Smith,  280,  281. 


40  HISTOEY   OF  THE   COTJET   AOT>   OF   THE 


and,  in  assigning  his  reasons  for  doing  so,  stated,  that  Phillipse  had  been  a  member 
of  Hunter's  council  when  the  court  was  re-established,  and  concurred  in  the  act  ; 
that,  if  the  object  was  really  to  correct  abuses  in  the  court,  some  measures  should 
have  been  proposed  ;  but  that  the  passage  of  the  resolution  in  a  clandestine  manner, 
at  the  end  of  the  session,  was  designed  to  bring  him,  the  governor,  into  discredit, 
and  to  impress  the  people  unfavorably  towards  the  government.1  It  certainly  had 
that  effect;  for  the  excitement  produced  was  so  great,  that,  in  the  spring  following, 
the  whole  matter  was  referred  to  a  committee  of  the  council,  which  resulted  in  the 
publication  of  an  ordinance  correcting  many  of  the  abuses  of  the  court,  and  so  ma- 
terially reducing  the  fees,  that,  says  Smith,  writing  forty  years  afterwards,  "  the 
wheels  of  the  chancery  hath  ever  since  rusted  upon  their  axis  —  the  practice  being 
contemned  by  all  gentlemen  of  eminence  in  the  profession."  2 

Though  provision  had  been  made  in  all  the  previous  acts  and  ordinances,  for  the 
appointment  of  a  chancellor,  none  appears  to  have  been  commissioned  ;  but  when 
the  governor  did  not  act  in  person,  the  decision  of  matters  in  equity  were  left  to 
the  chief  justice  or  his  associates,  who  were  generally  members  of  the  council,  or  to 
one  of  these  judges,  with  other  members  of  the  council,  who  were  of  the  legal  pro- 
fession. The  act  of  1691  declared  that  the  governor  might  be  assisted  in  the  court 
of  chancery,  by  such  members  of  the  council  as  he  might  think  fit  and  necessary  ; 
and  by  Nanfan's  ordinance  of  1701,  the  court  was  to  consist  of  the  governor  and  his 
council,  or  any  two  of  the  board.  Lord  Cornbury  sat  occasionally  as  chancellor, 
with  Attwood  to  assist  him  ;3  but  his  successor,  Governor  Fletcher,  would  have 
nothing  to  do  with  the  judicial  determination  of  any  thing  affecting  property,  until 
the  matter  came  regularly  before  him,  upon  appeal,  or  by  writ  of  error.4  During 
the  ten  years  that  Hunter  was  governor,  he  sat  constantly  as  chancellor.  Upon  re- 
establishing the  court,  he  wrote  to  the  attorney  general  in  England  respecting  his 
powers,  who  advised  him  that  he  was  the  sole  judge  of  the  court;  and  throughout 
Lis  term  he  presided  alone,5  as  did  also  his  successor,  Governor  Burnett.6  Burnett, 
who  was  the  son  of  Bishop  Burnett,  the  celebrated  author  of  the  "  History  of  his 
Own  Times,"  took  especial  pleasure  in  sitting  as  chancellor.  He  was  no  lawyer  ;  but 
being  a  man  of  extensive  reading,  of  good  sense,  and  of  a  cultivated  literary  taste, 
he  fulfilled  his  duties  as  chancellor  respectably.  Smith  says,  that  no  governor  before 
him  ever  did  so  much  business  in  the  court  ;  but,  according  to  the  same  authority,  he 
had  one  great  defect,  which  he  frankly  confessed  himself,  that  of  acting  first,  and 
thinking  afterwards. 

Montgomery  came  out  as  governor  in  1728.  He  was  a  soldier  by  profession  ; 
had  been  a  courtier  and  a  member  of  parliament,  and  with  an  honest  acknowledg- 
ment of  his  unfitness  to  discharge  the  duties  of  such  an  office,  he  refused  to  act  as 
chancellor.  This  refusal  was  highly  gratifying  to  the  assembly,  and  strengthened 
the  opposition  to  the  court.  As  soon,  however,  as  it  was  known  in  England,  a  spe- 
cial order  was  sent  out,  directing  him  to  assume  the  duties  of  the  office.  He  com- 


i  Lon.  Doc.  xxiii.     5  Col.  Doc.  847.     Pamphlets  of  the  N.  T.  Hist  Soc.  series  C,  No.  2, 
Appendix. 

1  Smith,  280. 

4  Col.  Doc.  885,  923, 1010. 

5  Col.  Doc.  409. 
Lon.  Doc.  xxiv.  880. 

Lon.  Doc.  xxiii.,  xxiv.  830.    5  Col.  Doc.  84T. 


JUDICIAL  ORGANIZATION   OF  THE  STATE. 

plied,  but  with  great  reluctance  and  aversion,  frankly  confessing  to  the  practitioners 
before  him  that  he  was  entirely  unqualified  for  the  station.  In  fact,  he  never  delivered 
but  one  decree,  and  made  but  three  orders,  which,  both  as  to  matter  and  form,  he 
left  to  his  council  to  settle.1 

The  propriety  of  hearing  equity  business  on  the  exchequer  side  of  the  supreme 
court,  had  frequently  been  suggested,  and  Chief  Justice  Morris  encouraged  the  law- 
yers to  bring  equity  cases  before  him,2  but  no  one  felt  willing  to  take  a  decisive  step 
as  long  as  the  governor  saw  fit  to  act.  On  the  death  of  Montgomery,  however,  a 
meeting  took  place  between  the  lawyers  and  the  judges.  It  was  thought  that  the 
people  would  be  better  satisfied  to  have  their  rights  determined  by  competent  and 
sworn  judges ;  and  the  judges  concluding  that  they  had  power  to  hear  equity  mat- 
ters on  the  exchequer  side,  several  bills  were  filed  in  the  supreme  court  ;3  but  Rip 
Van  Damm,  who,  as  oldest  counsellor,  assumed  the  administration  of  the  govern- 
ment, received  peremptory  instructions  from  England  to  act  as  chancellor,4  which  he 
did  until  the  arrival  of  Governor  Cosby.  The  three  governors  thereafter,  Cosby, 
Clarke  and  Clinton,  acted  as  chancellors;  and  during  the  several  years  that  Chief  Jus- 
tice Delancey  was  lieutenant  governor,  he  sat  as  chancellor  with  the  puisne  judges  of 
the  supreme  court,  or  members  of  the  council  as  assistants.6  He  was  succeeded  by 
Sir  Charles  Hardy,  who  came  out  in  1753.  Hardy  was  by  profession  a  seaman ;  and 
Smith  describes0  the  perplexed  state  in  which  he  found  himself,  immediately  after 
his  arrival,  when  four  eminent  counsel,  Murray,  Nicolls,  Smith,  the  historian,  and  his 
father,  appeared  before  the  governor  to  argue  a  demurrer  to  a  bill  in  equity  :  "Gentle- 
men," said  Hardy,  "  my  knowledge  relates  to  the  sea ;  that  is  my  sphere.  If  you  want 
to  know  when  the  wind  and  tide  will  suit  for  going  down  to  Sandy  Hook,  I  can  tell 
you  ;  but  what  can  a  captain  of  a  ship  know  about  demurrers  ?  If  you  dispute 
about  a  fact,  I  can  look  into  the  depositions,  and  perhaps  tell  who  has  the  best  of  it ; 
but  I  know  nothing  of  your  points  of  law."  He  wanted  them  to  arbitrate  the  mat- 
ter. This  they  would  not  consent  to,  insisting  that  the  determination  of  the  demur- 
rer was  a  branch  of  his  office,  when,  to  his  great  relief,  Chief  Justice  Delancey  arrived 
who  heard  the  argument  and  sustained  the  demurrer.7 

Hardy  undertook  to  hear  a  case  alone,  as  it  involved  principally  questions  of  fact ; 
but  he  succeeded  so  badly,  that,  in  the  next  case,  he  called  in  the  three  justices  of  the 
supreme  court  to  assist  him.8  In  the  address  of  the  assembly,  in  1737,  it  is  said, 
that  "  few  of  the  governors  had  talents  equal  to  the  task  of  chancellor,  and  so  it  was 
executed  accordingly — some  of  them  being  willing  to  hold  the  court — others  not, 
according  as  they  happened  to  be  influenced  by  those  about  them."  As  to  the  man- 
ner in  which  proceedings  were  conducted,  or  as  to  the  correctness  of  the  decisions  of 
the  governors,  or  of  those  who  assisted  them  in  the  determination  of  matters  in 
equity,  but  little  information  can  now  be  gathered,  as  but  few  records  of  the  court  of 


Lon.  Doc.  xxiv.  102, 108.    5  Col.  Doc.  830.    1  Smith,  282,  233.    1  Dunlap,  292,  293. 

Lon.  Doc.  xxiv.  880,  Cosby's  Letter. 

Pamphlets  in  N.  Y.    Hist.  Soc.  series  C.  No.  2,  p.  29. 

Lon.  Doc.  xxv.  198.  Doc.  102. 

2  Dunlap,  Appendix,  C.  L.  xxix. 

2  Smith,  2T4. 

Tingley  v.  Aldwick,  Admx.,  &c.,  Eec.  in  Chancery,  No.  54. 

Eec.  No.  54,  p.  64. 


42  HISTOKY   OF   THE   COmT   AND   OF   THE 

chancery,  before  the  revolution,  exist,  or  at  least  could  be  found,  after  a  diligent 
search,  and  the  few  that  remain  are  in  a  very  imperfect  condition. 

In  the  instructions  given  governors  Sloughter  and  Fletcher,  under  William  and 
Mary,  they  were  required  to  see  that  a  court  of  exchequer  should  be  convened,  at 
such  times  as  should  be  needful,  and  both  of  them  were  required  to  ascertain  and 
inform  the  board  of  trade  and  plantations  whether  the  service  of  the  crown  required 
that  a  permanent  court  of  exchequer  should  be  established.1  Whether  they  took 
any  measures,  or  whether  any  such  court  was  held  during  the  ten  years  that  inter- 
vened from  the  arrival  of  Sloughter  to  the  death  of  Bellamont,  is  not  known.  Smith 
says  that  Nanfan  erected  a  court  of  exchequer ;  but  this  is  evidently  a  mistake.  An 
order  in  council  was  made  in  1702,2  reciting,  that  whereas  there  were  several  mat- 
ters depending  in  the  court  of  exchequer,  which  could  not  be  finished  by  the  time 
limited  in  the  ordinance  for  establishing  courts  of  judicature ;  that  an  ordinance 
should  be  prepared  empowering  the  court  of  exchequer  to  sit  and  determine  all  mat- 
ters which  then  were,  or  might  thereafter  be  commenced,  or  depending  before  it. 
until  the  same  should  be  finished  and  ended.  This  had  reference  merely  to  the  accu- 
mulation of  cases  on  the  exchequer  side  of  the  supreme  court ;  the  terms  of  that  court, 
as  fixed  by  Bellamont's  ordinance,  not  continuing  long  enough  to  enable  the  judges 
to  dispose  of  the  exchequer  business;  and,  in  pursuance  of  this  ordinance,  Chief 
Justice  Attwood,  and  the  two  puisne  judges,  held  sessions  of  the  exchequer  side, 
at  a  time  different  from  the  regular  sessions  of  the  supreme  court ;  though,  in  a 
short  time,  the  practice  appears  to  have  fallen  into  disuse,  or  the  ordinance  may 
have  been  repealed ;  for  there  appears  to  have  been  no  proceedings  in  exchequer 
thereafter,  for  thirty  years.3 

In  1733,  a  dispute  arose  between  Rip  Van  Damm  and  Governor  Cosby,  respect- 
ing a  mutual  claim  upon  the  salary  which  Van  Damm  had  received,  while  acting  as 
governor ;  and  as  it  involved  a  question  of  account,  cognizable  only  in  a  court  of 
equity,  the  governor,  in  virtue  of  his  office  as  chancellor,  was  cut  off  from  bringing 
a  suit  in  the  court  of  chancery.  The  attorney  general,  consequently,  filed  a  bill  be- 
fore the  judges  of  the  supreme  court,  as  barons  of  the  exchequer,  and  this  brought 
up  the  right  of  the  crown  to  create  a  court  of  exchequer,  and  revived  all  the  former 
agitations  against  the  establishment  of  courts  of  equity.  Van  Damm  engaged 
Messrs.  Alexander  and  Smith,  two  of  the  most  eminent  lawyers  of  the  time,  who 
plead  to  the  jurisdiction,  insisting,  among  other  objections,  that  the  supreme  court 
bad  no  power  to  proceed  in  equity.  The  question  was  argued  at  length,  and  the 
plea  overruled — the  two  puisne  judges,  Delancey  and  Phillipse,  concurring,  and 
the  chief  justice,  Lewis  Morris,  dissenting.  This  decision,  which  was  pronounced 
before  a  crowded  court,  was  received  with  a  general  burst  of  indignation.  The 
chief  justice  delivered  a  long,  dissenting  opinion,  in  writing;  the  governor  demanded 
a  copy,  which  was  sent;  but  Morris,  to  prevent  misrepresentation,  published  the 
opinion  in  the  newspapers.  This  gave  offence  to  the  governor.  Morris,  who  had 
been  twenty  years  chief  justice,  was  removed,  and  Justice  Delancey  appointed  in 


i  3  Col.  Doc.  688,  821. 
s  6th  April,  1T02. 

3  N.  T.  Hist  Coll.  355.    Pamphlets  of  N.  T.  Historical  See.  series  C.    No.  2  containing  copies 
of  records  and  entries  before  Attwood,  C.  J.,  and  De  Peyster  and  Walter,  in  Exchequer. 


JUDICIAL  ORGANIZATION  OF  THE   STATE.  43 

his  place.1  This  decision,  and  the  removal  of  Morris,  augmented  the  excitement 
which  already  existed,  and  divided  the  province  into  two  violent  factions — the  demo- 
cratic, or  popular  one,  led  by  Van  Damm,  and  "  the  people  of  figure,"  who  took 
sides  with  the  governor.  The  right  of  the  supreme  court  to  exercise  jurisdiction  in 
equity,  was  brought  before  the  general  assembly  at  its  next  session.  Petitions  were 
presented  for  the  repeal  of  the  court  of  exchequer,  as  a  branch  of  the  supreme  court, 
and  for  the  general  re-establishment  of  all  the  courts,  by  an  act  of  the  assembly.  The 
governor  had  a  majority  ;  but  the  opposition  was  so  formidable,  from  the  men  that 
composed  it,  and  the  strength  derived  from  the  popular  support,  that  a  resolution 
was  agreed  to,  inviting  the  two  most  prominent  lawyers  of  the  respective  parties  to 
argue  the  question  before  the  bar  of  the  house.  Mr.  Smith,  the  father  of  the  histo- 
rian, was  heard  on  the  democratic  side,  and  Mr.  Murray,  the  oldest  member  of  the 
bar,  in  reply,  in  an  argument  evincing  on  both  sides  a  great  deal  of  ability,  and  an 
amount  of  research  and  antiquarian  information  that  was  scarcely  to  have  been  ex- 
pected ;2  and,  as  generally  happens  in  the  argument  of  difficult  legal  questions  before 
a  popular  body,  the  members,  according  to  Smith,  were  so  confounded,  that  they  de- 
termined to  postpone  the  matter  until  they  could  take  the  sense  of  their  constituents. 

The  personal  bitterness  which  the  controversy  provoked,  found  a  ready  expression 
in  the  public  newspapers;  and  the  organ  of  the  popular  party,  which  was  published 
by  a  printer  named  Zenger,  gave  especial  offence  to  the  leaders  of  the  party  in 
power,  by  making  them  the  subject  of  satiric  effusions  in  verse.  -  The  offensive  bal- 
lads were  directed,  by  an  order  in  council,  to  be  burned  by  the  public  hangman ; 
and  an  information  was  filed  in  the  supreme  court  against  Zenger,  for  the  publica- 
tion of  other  articles,  reflecting  on  the  government.  The  attention  of  all  parties 
was  now  drawn  off  to  the  prosecution  against  Zenger.  Messrs.  Smith  and  Alexan- 
der, as  the  legal  champions  of  the  popular  side,  volunteered  in  his  defence ;  and 
feeling  that  he  must  be  convicted  of  libel,  if  the  case  was  brought  to  a  trial,  they 
excepted  to  the  validity  of  the  commissions  of  the  judges.  This  was  treated  by 
Chief  Justice  Delancey  as  a  high  affront,  and  Smith  and  Alexander  were  stricken 
from  the  rolls.  On  the  day  of  trial,  however,  Mr.  Hamilton,  an  eminent  lawyer  of 
Philadelphia,  appeared  for  Zenger,  and  by  his  skill  in  managing  the  court,  and  by 
insisting  upon  the  doctrine,  not  then  established  in  England,  that  in  prosecutions  for 
libel,  the  jury  were  the  judges  of  the  law  and  the  fact,  he  secured,  against  the  charge 
of  the  chief  justice,  the  acquittal  of  the  printer.  This  was  hailed  as  a  great  popu- 
lar triumph,  and  Smith  and  Alexander  followed  it  up  by  renewing  the  attack  upon 
the  court  of  chancery.  In  an  equity  case,  then  pending  before  the  governor,  they 
excepted  to  his  right  to  sit  as  chancellor ;  and  the  exception  being  overruled,  they 
again  brought  the  question  before  the  assembly.3 

The  objection  made  to  the  court  of  chancery,  that  it  was  not  in  the  power  of  the 
crown  to  erect  such  a  court  without  the  consent  of  the  legislature,  applied  with 


1  Lon.  Doc.  xxv.  9.    5  Col.  Doc.  Cosby  and  Morris  Letters.    2  Smith,  8.    1  Dunlap,  296.    Me- 
moir of  Chief  Justice  Delancey,  4.    N.  Y.  Doc.  Hist.  62T. 

2  Pamphlets  of  the  N.  Y.  Historical  Society,  series  C.  Nos.  1  and  2.     1  Smith,  371,  and  2 
Smith,  IT. 

3  5  Col.  Doc.     Morris  and  Crosby's  Letters.    2  Smith,  24—28.    1  Dunlap,  300.     N.  Y.  Hist.  Soc. 
Col.  2d  series,  47.    Mr.  Butler's  Discourse.     Memoir  of  Delancey.    4  Doc.  Hist  of  N.  Y.  630. 
Howell's  State  Trials,  vol.  xvii.  75.    Jour,  of  Col.  Assembly,  1732  to  1737.    Bradford's  American 
Weekly  Mercury,  Nos.  883,  884,  for  1735. 


4:4:  HISTORY  OF  THE  COURT  AND  OF  THE 

equal  force  to  the  supreme  court,  for  both  tribunals  existed  by  virtue  of  the  same 
ordinance.  This  was  strongly  put  by  Murray  in  his  argument  before  the  house. 
The  supreme  court  had  continued  under  Bellamont's  ordinance  for  nearly  forty  years ; 
and  to  declare  that  it  had  existed  without  authority,  and  that  all  its  proceedings 
were  null  and  void,  would  have  been  to  disturb  titles,  and  beget  a  multitude  of 
questions,  which  an  act  of  the  legislature  affirming  the  validity  of  its  proceedings 
might  not  be  sufficient  to  settle.  So  little  had  been  done  in  the  court  of  chancery, 
or  in  the  court  of  exchequer,  that  the  validity  or  invalidity  of  either  of  these  courts  was 
comparatively  unimportant.  But  the  supreme  court  was  the  principal  law  tribunal 
of  the  province,  and  to  disturb  all  its  proceedings,  would  have  been  attended  with 
serious  consequences.  This  was  felt  by  Smith  and  Alexander,  and  the  other  leaders  of 
the  party  with  whom  they  acted.  Upon  Zenger's  trial,  they  carefully  avoided  taking 
any  exception  to  the  validity  of  the  court,  thinking  to  gain  their  object  by  excepting  to 
the  judges'  commissions.  As  they  expressed  it,  they  admitted  the  being  of  the  court, 
but  denied  that  the  judges  had  been  duly  commissioned  to  sit  in  it.  Though 
they  were  cut  off  from  discussing  the  regularity  of  the  appointment  of  the  judges 
by  the  high  handed  measure  of  Delancey,  their  object  was  gained  by  the  subsequent 
acquittal  of  Zenger.  But  the  abolition  of  courts  of  equity  had  now  become  a  party 
question.  As  political  leaders,  they  were  bound  to  pursue  it,  though  conscious  that 
nothing  could  be  done.  Their  motion  before  the  governor,  as  chancellor,  was  over- 
ruled ;  and  had  they  appealed,  the  governor  and  his  council  were  the  court  of  re- 
view. An  appeal  lay  from  that  tribunal,  it  was  true,  to  the  king,  but  the  matter 
had  already  been  brought  to  the  attention  of  the  home  government,  and  its  decision 
had  been  adverse.  There  was  no  hope,  therefore,  in  pressing  it  as  a  legal  question,  and 
nothing  could  be  accomplished  by  an  act  of  the  assembly.  The  result  of  Zenger's  trial 
had  produced  many  changes  in  that  body,  and  the  opposition  had  now  a  majority  ; 
but  had  the  assembly  passed  an  act  abolishing  the  court,  it  could  be  of  no  effect  with- 
out the  concurrence  of  the  governor.  In  this  dilemma,  a  few  of  the  more  sagacious 
of  the  leaders  of  the  opposition  tried  to  effect  a  compromise.  They  knew  that  equi- 
table jurisdiction  must  be  vested  somewhere,  and  that  it  was  of  little  practical  im- 
portance in  what  tribunal  it  was  lodged.  They  proposed,  therefore,  that  an  act 
should  be  passed,  with  the  concurrence  of  the  governor,  reiustituting  all  the  courts 
precisely  as  they  stood,  and  reaffirming  all  their  previous  proceedings,  so  that  the 
courts  should  exist  thereafter  by  the  authority  of  the  legislature,  instead  of  being 
left  to  depend  for  their  validity  upon  the  ordinances  of  Bellamont  and  Corubury. 
Cosby,  however,  now  felt  his  advantage.  He  would  not  consent ;  and  the  assembly, 
finding  that  nothing  could  be  accomplished,  both  parties  united  in  an  unanimous  re- 
quest that  he  would  dissolve  them,  and  order  a  new  election,  to  ascertain  the  wishes 
of  the  inhabitants  of  the  province.  But  Cosby's  pride  was  aroused.  He  had 
been  personally  assailed  through  the  public  newspapers,  and  in  private  circles ;  and 
this  he  also  refused.  Indignant  at  his  refusal,  the  assembly  passed  a  resolution 
against  the  court  of  chancery,  similar  to  those  already  referred  to,  and  adjourned  the 
session  for  four  months.1  The  question  now  seemed  farther  removed  from  settle. 
ment  than  ever,  when  an  unexpected  event  changed  the  whole  course  of  affairs.  In 
the  interim  Cosby  died.  He  was  succeeded  by  Clarke,  a  member  of  the  council, 


2  Smith,  32.    Jour,  of  CoL  Assembly,  1T36. 


JUDICIAL  ORGANIZATION  OF  THE   STATE.  45 

as  acting  governor,  an  able,  prudent  and  conciliatory  man.  Clarke  dissolved  the  as- 
sembly, after  an  existence  of  ten  years;  and  though  the  next  assembly  were  hostile 
to  him,  and  in  reply  to  his  address,  renewed  the  subject  of  the  courts,  he  managed 
so  judiciously  as  to  calm  the  turbulence  of  party  spirit,  secured  the  popular  support, 
and  brought  the  leaders  of  the  opposition  into  discredit,  even  with  their  own  con- 
stituents. One  of  his  first  acts  was  to  effect  a  reconciliation  between  the  judges  and 
Messrs.  Smith  and  Alexander,  who  were  restored  to  their  professional  position;  and 
he  afterwards  kept  the  assembly  busy  by  his  active  measures  for  improving  the 
financial  condition  of  the  colony,  and  rescuing  its  internal  affairs  from  the  state  in 
which  they  had  been  left  by  the  neglect  of  his  predecessors. 

Other  and  more  important  matters  began  to  engross  the  public  attention.  The 
Spanish  war,  and  the  events  which  shortly  after  led  to  the  French  and  Indian  wars, 
engaged  the  thoughts  of  the  colonists,  until  the  old  agitation  respecting  the  courts 
gradually  passed  from  the  public  mind,  and  was  at  length  entirely  forgotten. 

During  the  forty  years  that  preceded  the  revolution,  the  court  of  chancery  was 
regularly  held,  all  the  remaining  governors  continuing  to  preside  alone  as  chancel- 
lors.1 It  does  not  appear  that  the  judges  of  the  supreme  court  undertook  again  to 
hold  a  court  of  exchequer;  but,  singularly  enough,  a  court  so  obnoxious  to  the 
popular  party  in  the  days  of  the  colonists,  was  revived  immediately  after  the  revo- 
lution, as  a  branch  of  the  supreme  court.2  In  1770,  the  evil  of  allowing  the  gov- 
ernors to  act  as  chancellors  was  put  to  the  proof.  It  has  been  'before  stated  that 
the  governors,  in  addition  to  their  salary,  derived  a  large  income  from  the  fees  or 
perquisites  exacted  upon  granting  patents  for  land.  When  Sir  Henry  Moore  died, 
in  September,  1669,  a  number  of  patents  were  left  unexecuted,  the  fees  upon  which 
amounted  to  the  large  sum  of  £10,000.  To  secure  this  sum  to  himself,  Lieutenant 
Governor  Golden  hurried  through  the  business  of  passing  the  patents,  and  having 
completed  it  before  the  arrival  of  Moore's  successor,  he  received  the  ten  thousand 
pounds.  When  the  new  governor,  Lord  Dunmore,  came  out,  towards  the  close  of 
1770,  he  demanded  from  Golden  the  one  half  of  all  the  fees,  perquisites  and  emolu- 
ments of  the  office,  that  had  accrued  from  the  date  of  his  commission  to  the  time 
of  his  arrival,  which  Golden  refused  to  give  up.  Dunmore  then  directed  the  at- 
torney general  to  file  a  bill  against  him  in  the  court  of  chancery,  in  which  the 
governor  was  the  sole  judge,  to  recover  back  one  half  of  the  perquisites,  which  the 
governor  directed  should  be  filed,  nominally,  in  the  name  of  the  crown,  but  in 
reality,  for  his  own  benefit.  The  suit  was  commenced,  and  Golden,  after  several 
counsel  had  declined,  through  fear  of  the  governor's  displeasure,  retained  James 
Duane,  of  whom  we  shall  have  occasion  to  speak  hereafter.  Duane,  on  behalf 
of  his  client,  demurred  to  the  bill ;  and  when  the  case  came  on  to  be  argued, 
Dunmore,  unblushingly,  took  his  seat  in  court  to  hear  and  determine  the 
cause,  as  chancellor.  Duane  opened  the  argument,  and  showed,  conclusively,  that 
the  suit  could  not  be  maintained,  without,  however,  producing  any  effect  upon 
the  governor,  and  was  replied  to  by  the  attorney  general,  and  by  Smith,  the 
historian ;  the  latter,  according  to  Golden,  exhibiting  an  easiness  of  principles  that 
enabled  him  to  affirm,  deny  or  pervert  any  thing,  with  a  degree  of  confidence  that 


i  Kec.  from  13th  of  May,  1T48,  to  31st  of  March,  1770. 
3  Laws  of  1786.    Gained  Ed.  241. 


4t>  HISTORY   OF   THE   COURT   AND    OF   THE 

might  easily  deceive  the  unwary.  After  hearing  the  argument,  Dunmore  fixed 
the  following  Thursday  for  giving  his  decree,  but  when  the  day  arrived,  he  put  it 
off  for  a  fortnight  longer,  and  when  that  time  expired,  he  was  still  unprepared  to 
decide.  According  to  Golden,  he  had  resolved  to  decree  against  him,  but  consider- 
ing it  prudential,  and  to  avoid  its  being  thought  that  he  was  interested,  he  then  re- 
ferred the  matter  to  the  four  judges  of  the  supreme  court,  for  their  opinion,  who 
unanimously  declared  that  the  demurrer  was  well  taken  in  all  its  essential  points, 
and  that  the  suit  could  not  be  maintained.  What  the  governor  would  now  do,  was 
looked  forward  to  with  much  interest  Wholly  destitute  of  integrity  or  principle, 
he  would  not  decide  in  favor  of  Golden,  and  dismiss  the  bill,  while  if  he  made  a  de- 
cree sustaining  it,  an  appeal  might  he  taken  to  the  king  and  privy  council,  where, 
even  if  the  decree  was  affirmed,  it  would  not  benefit  him,  the  suit  having  been 
brought  on  behalf  of  the  crown  ;  and,  in  any  event,  whether  it  was  affirmed  or  not, 
the  real  motive  that  prompted  the  suit,  and  his  own  conduct  in  assuming  to  sit  in 
judgment  in  a  case  instituted  for  his  own  benefit,  would  undoubtedly  be  exposed. 
He  accordingly  suffered  the  matter  to  remain  undetermined,  until,  in  about  two 
months,  he  was  superseded  by  Governor  Tryon,  when  he  left  the  colony,  having 
been  appointed  governor  of  Virginia.1  In  1774,  James  Jauncey  was  commissioned 
by  Governor  Tryon  as  master  of  the  rolls.2  He  was  empowered  to  hear  and  de- 
termine all  cases  in  the  court,  with  the  general  powers  belonging  to  the  master  of 
rolls  in  England.3  But,  throughout  the  whole  of  this  period,  that  is,  from  1735 
until  the  revolution,  the  business  of  the  court  was  exceedingly  small,  and  its  posi- 
tion, as  a  judicial  tribunal,  comparatively  unimportant.4 

At  first,  the  judges  of  the  supreme  court  were  appointed  by  the  governor,  and 
held  their  office  during  his  pleasure.  Smith,  the  chief  justice,  who  succeeded  Dudley, 
though  a  sensible  man,  had  not  been  bred  to  the  profession  ;  and  Bellamont  had  no 
confidence  in  his  opinion  respecting  the  law,  in  the  many  difficult  questions  that  were 
constantly  arising.  He  therefore  urged  the  home  government  to  send  out  an  able 
lawyer  as  chief  justice ;  and,  after  repeated  solicitation,  Attwood  was  appointed.5 
He  received  his  appointment  in  England,  in  the  shape  of  a  warrant  or  mandamus, 
•which  was  the  usual  mode  of  appointing  judges  for  the  colony;6  requiring  the  gover- 
nor to  commission  him,  by  letters  patent,  to  be  issued  under  the  seal  of  the  province, 
and  attested  by  the  governor.7  And,  as  respects  the  chief  justices,  this  mode  of  ap- 
pointment, with  one  exception,  was  adhered  to  thereafter.  The  motive  that  induced 
Bellamont  to  bring  about  this  change,  was  a  good  one ;  but  it  produced  an  effect 
very  different  from  what  he  intended;  for  Attwood  was  one  of  the  worst  chief  jus- 
tices the  colony  ever  had. 

A  leading  object  with  Bellamont  was,  to  obtain  chief  justices  whose  education  and 


1  The  writer  is  indebted  for  this  interesting  piece  of  information  to  Mr.  Bancroft,  the  historian. 
It  is  collected  from  copies  of  manuscript  letters  of  Golden,  obtained  by  Mr.  Bancroft.    There  is 
also  a  brief  reference  to  the  matter  in  Jones'  Memoir  of  Duane,  in  which  Governor  Monckton  is 
confounded  with  Governor  Dunmore.    4  N.  Y.  Doc.  History,  644. 

2  24th  March,  1774. 
8  6  Eec.  of  Corns. 

*  Minutes  of  Court  of  Chancery,  No.  54, 1754  to  1770. 

6  Col.  Doc.  441,  515,  550. 

«  Stokes'  View  of  the  Constitution  of  the  British  North  American  Colonies,  26  i  to  267. 

i  Eecs.  of  Corns,  ii.  144. 


JUDICIAL  ORGANIZATION  OF  THE  STATE.  47 

social  position  in  England  would  place  them  above  the  low  arts  and  the  corruption 
that  prevailed  in  the  colony  -,1  but  Attwood  had  scarcely  been  in  office  over  a  year, 
when  he  was  removed  by  Lord  Corubury ;  and  the  charge  of  corruption  was  the 
principal  reason  assigned  for  displacing  him.  "  Atwood,"  said  Cornbury,  in  his  letter 
to  the  home  government,  "in  the  execution  of  his  office,  as  chief  justice  and  as  judge, 
ia  almost  all  cases  that  came  judicially  before  him,  by  the  general  report  of  all 
present,  did,  openly,  notoriously  and  most  scandalously,  and  with  wonderful  partiality, 
in  almost  all  cases  in  which  his  sou  was  concerned  as  counsel,  espoused,  and,  indeed, 
pleaded  and  gave  countenance  to  such  causes,  and  finally  gave  judgment  on  ye 
(son's)  side ;  by  means  of  which,  justice  was  perverted,  ye  laws  abused,  and  ye 
subjects  exceedingly  injured ;  which  recommended  his  son  to  great  practice,  and 
large  sums  of  money  was  by  parties  given  to  him,  to  buy  his  father's  favor."2 
The  puisne  judges  continued,  as  before,  to  be  nominated  and  commissioned 
by  the  governor.  They  held  their  office,  during  his  pleasure,  while  the  chief 
justices  held  during  the  pleasure  of  the  crown.  A  tenure  so  precarious  was  pro- 
ductive of  very  injurious  consequences.  It  not  only  lessened  the  independence 
of  the  judges,  but,  as  they  were  generally  members  of  the  council,  and,  consequently, 
mixed  up  with  all  the  political  questions  of  the  day,  they  were  liable  to  be  removed, 
and  many  were  removed,  upon  the  change  of  parties.  When  Governor  Clinton 
came  into  office,  in  1746,  an  alteration  was  made.  As  a  compliment  to  Chief  Justice 
Delancey,  he  gave  him  a  new  commission,  to  hold  during  good  behavior  ;3  and 
similar  commissions  were  afterwards  granted  to  some  of  the  puisne  judges.  The 
good  effects  of  this  change  was  soon  apparent,  in  the  open  and  long  continued  oppo- 
sition of  the  chief  justice  to  the  measures  of  the  governor ;  an  opposition  in  which 
Delancey  was  sustained  by  the  general  voice  of  the  colony,  and  which  laid  the 
foundation  of  the  great  popularity  he  afterwards  enjoyed.  As  Delancey's  commis- 
sion was  granted  by  Governor  Clinton,  without  a  warrant  from  the  crown,  its  validity 
and  the  tenure  of  the  office  was  called  in  question,  in  1753 ;  but  Sir  Dudley  Ryder, 
the  attorney  general,  and  Lord  Mansfield,  who  was  then  solicitor  general,  to  whom 
the  matter  was  submitted  for  their  opinion,  replied,  that  though  it  should  not  have 
been  granted  contrary  to  the  usage,  still,  as  a  grant,  it  was  good  in  law,  and  could 
not  be  revoked  without  misbehavior.4  Upon  Delaucey's  death,  in  1760,  doubts  were 
entertained,  whether  the  judge's  commissions  did  not  expire  with  the  death  of  the 
king — an  event  which  took  place  in  the  same  year  ;  to  remove  which,  arid  to  render 
the  judges  thereafter  independent,  either  of  the  governor  or  of  the  crown,  an  act  was 
passed  by  the  general  assembly,  to  compel  a  reappointment  of  judges,  who  should 
hold  their  offices  upon  the  tenure  of  good  behavior.  To  this  act,  Lieutenant  Gove- 
nor  Golden  refused  his  assent ;  and  when  the  time  approached  for  holding  the  term, 
the  judges  demanded  from  him  new  commissions,  upon  the  former  tenure,  of  good 
behavior.  This  was  refused,  and  the  judges  threw  up  their  commissions.  The  chief 
justiceship,  rendered  vacant  by  the  death  of  Delancey,  was  offered  to  Smith,  the 
father  of  the  historian,  to  hold  during  the  pleasure  of  the  crown ;  but  he  declined 
accepting  it  upon  that  tenure,  and  the  question  remained  unsettled  for  some  time; 


1  4  Col.  Doc.  515,  550. 

2  Cornbury's  Letter  to  the  Lords  of  Trade,    4  Col.  Doc.  1010. 

3  3  Eec.  of  Corns.  420.    2  Smith,  194. 
*  Lon.  Doc.  xxxi.  65. 


4:8  HISTOKY    OF   TIIE    COURT   AND   OF   THE 

until,  finally,  two  of  the  old  judges,  Horsmanden  and  Jones,  accepted  commissions 
during  the  king's  pleasure.1 

In  1163,  the  general  assembly  sent  a  memorial  to  George  III.,  requesting  that, 
in  accordance  with  the  example  set  by  William  III.,  and  in  conformity  with  the 
recommendation  contained  in  his  own  speech  upon  ascending  the  throne,  that  the 
appointment  of  the  judges  should  be  perpetual  during  their  good  behavior.  The 
memorial  was  referred  to  the  treasury  board,  of  which  Lord  North  was  a  member, 
and  it  was  determined,  doubtless  through  his  influence,  that  the  tenure  of  the  chief 
justice  should  be  the  kingje  pleasure,  as  well  as  the  amount  and  the  payment  of  his 
salary ;  and  the  judges  remained  thereafter  entirely  dependent  upon  the  crown.2 

It  has  already  been  stated,  that  after  the  creation  of  the  court,  in  1691,  five  judges 
were  appointed.  When  Attwood  came  out,  in  1701,  all  the  puisne  judges  had 
ceased  to  act,  and  Attwood  sat  alone  on  the  bench,3  until  Abraham  De  Peyster,  who 
had  preceded  him  as  chief  justice,  and  Robert  Walters,  were  commissioned  as 
puisne  judges.  The  act  of  1691  had  fixed  the  number  of  the  justices  at  five,  but 
Bellamout's  ordinance  made  no  provision  as  to  their  number,  and  three,  probably, 
having  been  found  sufficient  for  the  wants  of  the  province,  no  change  was  made  for  fifty 
six  years,  the  court,  during  the  whole  of  that  period,  consisting  of  a  chief  justice  and 
two  puisne  judges.  When  Chief  Justice  Delancey  was  appointed  lieutenant  governor 
he  did  not  resign  his  office  as  chief  justice,  but  left  the  duties  of  the  court  to  be  per- 
formed principally  by  his  two  associates.  This  was  found  to  be  very  inconvenient; 
and  in  1758,  a  case  arising  respecting  lands  claimed  by  Trinity  Church,  of  which  the  two 
puisne  judges,  Chamber  and  Horsmanden,  were  trustees  or  vestrymen,  David  Jones, 
the  granduncle  of  the  late  Chief  Justice  Samuel  Jones,4  was  appointed  by  Delancey 
an  additional  judge  of  the  court;  and  it  consisted  thereafter  of  a  chief  justice  and 
three  puisne  judges. 

The  salary  of  the  judges  was  at  no  time  sufficient  to  maintain  them.5  Chief  Jus- 
tice Dudley  received  £150  per  annum ;  the  second  judge,  Johnson,  £100 ;  the  remain- 
ing judges  and  the  attorney  general  had  no  compensation.  When  Attwood  was 
appointed,  his  salary  was  raised  to  £300 ;  the  second  judge's  increased  to  £150,  and 
the  third  judge  was  allowed  £50.6  Montgomery,  in  1729,  reduced  the  salary  of  the 
chief  justice  to  £250  ;7  but  after  the  accession  of  Delancey  to  the  office,  it  was  restored 
to  £300  ;  and  Gov.  Tryon,  after  1772,  raised  the  salary  of  Chief  Justice  Horsmanden 
to  £500.8  The  smallness  of  the  salary  and  the  uncertainty  of  the  tenure  prevented 
the  eminent  lawyers  from  aspiring  to  the  station ;  and  the  puisne  judgeships  were 
filled  by  men  of  affluence,  but  few  of  whom  had  any  knowledge  of  law,  or  were  men 
of  much  capacity.9 


2  Smith,  852. 

4  Bancroft,  429—441.    5  Id.  84.    Stokes'  View  of  the  Constitution  of  the  British  North  Ameri- 
can Colonies,  264. 

4  Col.  Doc.  923. 

Kec.  of  Corn's,  v.  14T— 224. 
Lon.  Doc.  xxxvi.  1. 

5  Col.  Doc.  104. 
Lon.  Doc.  xxiv.  880. 
Lon.  Doc.  xlvi.  15T. 

Stokes  on  Const,  of  British  North  American  Colonies,  2&4  to  26T.    1  Smith.    4  CoL  Doc.  441, 
515, 550. 


JUDICIAL   OKGANIZATION   OF   THE   STATE.  49 

From  the  manner  in  which  lands  had  been  obtained  by  grant  and  patents,  a  feudal 
aristocracy  had  sprung  up  in  the  colony,  and  the  influence  of  dominant  families 
was  felt,  either  in  controlling  the  administration  of  public  affairs,  or  in  active  opposi- 
tion to  those  who  had  the  mastery.1  From  these  families  the  puisne  judges  were 
usually  selected,  and  as  they  were  generally  members  of  the  council,  the  station  was 
eagerly  sought,  from  the  dignified  position  it  gave,  and  the  political  influence  it 
commanded.  While  presiding  in  court,  none  of  the  judges  wore  any  official  cos- 
tume, as  was  customary  at  the  time  in  England,  in  the  West  Indies,  and  in  some  of 
the  other  colonies  ;  nor  was  any  distinguishing  costume  worn  by  the  lawyers,  though 
in  other  respects  the  forms  and  ceremonies  of  the  English  courts  were  adhered  to.2 

There  were  thirteen  colonial  qhief  justices :  Joseph  Dudley,  William  Smith,  Abraham 
De  Peyster,  William  Attwood,  John  Bridges,  Roger  Mompesson,  Lewis  Morris,  James 
Delancey,  Benjamin  Pratt  and  Daniel  Horsmanden,  nearly  all  of  them  men  of  ability. 
Delancey,  who  filled  the  office  for  twenty  seven  years,  was  the  most  prominent,  and 
perhaps  the  most  distinguished.  He  was  the  son  of  a  French  Huguenot,  who  had 
amassed  a  large  fortune  in  the  colony.  Having  received  a  university  education 
abroad,  he  became,  at  an  early  age,  an  active  leader  in  public  affairs,  and  continued^ 
until  the  close  of  his  life,  to  occupy  a  public  station.  In  legal  learning  he  was 
inferior  to  several  prominent  lawyers  of  the  time,  but  he  had  remarkable  natural 
abilities,  upon  which  he  depended,  as  he  read  but  little,  and  was  very  averse  to 
writing.  Upon  the  bench  he  applied  himself  closely  to  the  matter  before  him,  and 
having  a  very  retentive  memory,  acute  perception  and  a  sound  judgment,  he  was 
enabled  to  dispose  of  elaborate  cases  with  great  readiness,  and  to  the  general  satis- 
faction of  the  bar.  Whatever  he  had  read  or  had  acquired  in  the  way  of  legal 
learning,  in  the  course  of  his  experience,  he  could  produce  upon  the  instant.  Having 
all  his  knowledge  thus  promptly  at  command,  and  with  a  mind  so  constituted,  that 
it  lost  its  force  or  its  grasp  of  a  subject  in  proportion  as  he  delayed  to  deliberate,  he 
was  generally  ready  to  act  at  once ;  his  first  thoughts  being  always  the  best,  express- 
ing himself,  whether  from  the  bench  or  in  the  halls  of  legislation,  with  clearness, 
brevity  and  point.  As  a  political  manager  he  was  intrepid,  prompt  and  sagacious, 
fertile  in  expedients ;  in  critical  emergencies  baffling  his  opponents,  and  attaining  his 
end  with  consummate  tact  and  judgment.  In  public  contests  he  was  a  master  of  the 
arts  that  win  popularity,  and,  as  a  ruler,  equally  a  master  of  the  more  difficult  art 
of  retaining  it;  for  though  a  strong  conservative  in  his  politics,  and  generally  opposed 
to  the  popular  party,  no  man  in  the  colony  ever  worked  himself  so  fully  into  the 
public  confidence,  or  had  the  same  amount  of  personal  influence.  He  is  described 
by  his  contemporaries  as  remai'kable  for  his  convivial  qualities,  as  easy  of  access, 
assiduous  in  the  despatch  of  public  business,  and  steadfast  in  his  friendships.  It  is 
to  be  regretted  that  he  marred  his  otherwise  irreproachable  conduct  on  the  bench 
by  giving  way,  in  political  cases  like  that  of  Zenger,  to  the  feelings  of  a  partisan ; 
and  involved,  as  he  was,  throughout  his  long  career,  in  every  political  intrigue  and 
party  movement,  his  character,  in  other  respects,  has  not  escaped  without  reproach. 
But  he  was  a  man  of  more  integrity  than  he  received  credit  for  during  life ;  and  when 
the  government  was  entrusted  to  his  hands,  he  administered  it  with  so  much  ca- 


1  Lon.  Doc.  xxxvi.  1. 
a  1  Smith,  376. 


50  HISTOKT   OF   THE   COUKT   A3TD   OF   THE 

pacity,  and  with  so  single  an  eye  to  the  general  welfare  of  the  province,  as  to  wring 
a  reluctant  tribute  from  his  enemies. 

Of  the  colonial  lawyers,  whose  lives  were  devoted  exclusively  to  their  profession, 
but  little  is  necessarily  known.  In  most  mental  pursuits,  an  opportunity  is  afforded 
for  achieving  something  which  may  remain  as  a  memorial  of  the  life  and  labors  of 
the  mind  that  created  it.  The  sculptor  who  works  out  a  statue  from  a  block  of 
marble,  has  the  satisfaction  of  knowing  that  his  efforts  are  embodied  and  adequately 
represented  in  what  he  has  produced ;  but  the  life  of  a  lawyer  is  usually  devoted  to 
attaining  results  that  cease  to  be  of  interest  when  the  end  is  accomplished,  and  it 
matters  not  how  great  may  be  his  talents,  how  extensive  his  learning,  or  unwearied 
his  industry,  unless  he  has  had  leisure  to  compose  judicial  works,  he  can  leave  little 
behind  him  that  will  interest  posterity,  or  which  will  serve  to  show  of  what  he  was 
capable.  A  forensic  argument,  or  the  occasional  report  of  a  trial,  may  survive,  but 
such  fragmentary  memorials  are  not  of  themselves  sufficient  to  prove  that  a  man  had 
attained  to  commanding  eminence  in  a  profession,  where  general  excellence  depends 
upon  the  possession  and  thorough  cultivation  of  so  many  qualities.  Even  those 
endowments  which  are  looked  upon  as  the  highest  in  this  most  difficult  and  onerous 
profession,  which  are  deemed  the  greatest,  because  the  most  essential,  and  in  which 
the  chief  excellence  of  a  lawyer  lies,  are  not  those  which  attract  general  attention  or 
lead  to  great  public  renown.  The  foreshadowing  sagacity  that  perceives  in  advance 
all  the  probable  exigencies  of  a  case,  the  close  attention  which  suffers  nothing  to 
escape,  but  upon  a  trial  keeps  every  faculty  intent  upon  the  case  as  it  is  developed, 
the  cool  collectedness  which  is  never  disturbed  by  the  unexpected  disclosures  of 
evidence,  or  embarrassed  by  a  legal  objection,  but  is  able  at  the  instant  to  meet  each 
emergency,  and  put  the  best  aspect  upon  it,  the  skillful  and  adroit  management 
of  partial,  prejudiced,  thoughtless  or  dishonest  witnesses,  and  the  power  at  the  close 
of  a  trial,  or  upon  an  argument,  of  resolving  a  complicated  mass  of  facts  into  their 
due  relation  to  each  other,  and,  of  deducing  the  principles  which  grow  out  of  the  case 
and  by  which  it  must  be  governed,  together  with  the  power  of  using  his  learning 
with  nice  and  discriminating  judgment,  are  the  qualities  which  secure  the  successful 
end  aimed  at  in  every  legal  controversy,  but  are  not  those  which  bring  down  the 
plaudits  of  the  multitude.  This  eminent  professional  merit,  the  fruit  of  strong 
natural  ability,  coupled  to  great  industry  and  experience,  has,  during  the  lifetime 
of  its  possessor,  but  a  few  select  admirers ;  and  when  he  has  passed  away  from  the 
stage  of  life,  there  is  nothing  but  their  recollectiocs  to  float  him  down  the  stream  of 
time,  until  he  is  lost  in  the  mist  that  finally  enshrouds  all  that  is  traditional. 

The  first  English  lawyer  whose  name  appears  upon  the  records,  is  John  Tudor. 
He  practiced  for  many  years  in  the  mayor's  court,  appears  to  have  been  familiar 
with  the  Dutch  language,  was  recorder  of  the  city  from  1704  to  1710,  and  died  in 
17 15.1  The  account  given  by  Bellamont,  in  1698,  of  Tudor's  contemporaries,  who 
was  a  gentleman  and  a  high  minded  man,  and  whose  statement  may  therefore  be  relied 
on,  is  far  from  being  flattering.  He  says  that  nearly  all  who  then  called  themselves 
lawyers,  and  practiced  in  the  colony,  were  men  of  scandalous  characters;  that  none 
of  them  had  ever  been  barristers,  or  aimed  at  anything  higher  in  England  than  the 
duties  of  an  attorney ;  that  one  had  been  a  dancing  master,  another  was  by  trade  a 


Eec.  of  Mayor's  Court,  1674. 


JUDICIAL   ORGANIZATION   OF   THE   STATE.  51 

glover,  and  that  a  third,  one  Jamison,  had  been  condemned  to  be  hanged  in  Scot- 
land for  burning  a  Bible  and  blasphemy  ;  that  it  was  grievous  to  see  the  miserable 
way  in  which  they  mangled  and  profaned "  the  noble  English  law,"  and  that  in 
addition  to  their  ignorance,  they  were  all,  with  one  or  two  exceptions,  violent 
enemies  of  the  government,  and  were  doing  a  world  of  mischief  by  infecting  the 
people  with  an  ill  disposition  towards  it.1  The  lawyers  in  the  time  of  Chief  Justice 
Delancey,  were  men  of  a  very  different  stamp,  and  as  a  body,  would  have  done  no 
discredit  to  Westminster  Hall.  William  Murray,  who  was  then  the  senior  member  of 
the  bar  and  had  been  for  many  years  attorney  general,  was  a  man  of  much  legal 
experience,  able  upon  the  argument  of  a  law  question,  but  in  no  other  respect  re- 
markable. William  Smith,  the  father  of  the  historian,  and  towards  the  close  of  his 
life,  a  judge  of  the  supreme  court,  was  an  able  lawyer,  an  impressive  and  eloquent 
speaker,  and  a  man  of  varied  attainments.  In  addition  to  his  high  merit  as  a 
lawyer,  he  was  an  excellent  theologian,  a  proficient  in  the  French,  Greek,  Latin  and 
Hebrew  languages,  and  something  of  an  adept  in  the  sciences,  but  was  especially 
distinguished  for  his  oratorical  powers,  having  the  unusual  natural  advantages  of  an 
impressive  person,  a  fine  voice,  great  fluency,  and  an  active  imagination.  James 
Alexander  stood,  aa  a  lawyer,  for  more  than  a  quarter  of  a  century,  at  the  head  of 
the  profession.  He  was  an  uninteresting  speaker,  but  a  man  of  great  sagacity  and 
penetration,  deeply  read  in  the  law,  so  that  his  opinion  upon  any  legal  question,  it  is 
said,  was  received  or  listened  to  as  the  response  of  an  oracle.  He  surpassed  all  his 
contemporaries  for  his  close  application  to  business,  and  yet  found  time  to  acquire, 
for  one  not  especially  devoted  to  such  studies,  an  unusual  amount  of  knowledge  in 
several  of  the  natural  sciences.  Alexander  was  a  native  of  Scotland,  and  the  claim- 
ant of  a  Scotch  peerage,  which  passed  to  his  son,  the  Earl  of  Sterling,  and  he  died  in 
1756,  after  having  amassed  a  large  fortune,  the  fruits  of  an  upright,  an  arduous  and 
highly  honorable  professional  career.  There  was  also  another  lawyer  of  marked 
ability  in  the  colony  at  this  period,  Francis  Harrison ;  but  after  having  held  several 
important  judicial  stations,  he  became  involved  in  transactions  that  covered  him 
with  well  merited  obloquy,  and  he  left  the  colony  in  disgrace.  Immediately  before 
the  revolution,  the  bar  of  New  York  presented  a  galaxy  of  remarkable  men,  too 
numerous  for  individual  notice.  Among  its  senior  members  were  William  Smith,  the 
historian,  Samuel  Jones,  father  of  the  late  chief  justice,  John  Morin  Scott,  Richard 
Morris,  William  Livingston  and  Benjamin  Kissam  ;  and  its  junior  members  embraced 
the  well  known  names  of  John  Jay,  James  Duane,  Gouverneur  Morris,  Peter  R. 
Livingston,  junior,  Egbert  Benson  and  Peter  Van  Schaack. 

It  has  been  already  stated  that  commissions  in  admiralty  were  granted  by  the 
early  governors,2  and  that  jurisdiction  was  occasionally  exercised  by  the  mayor's 
court.  In  the  instructions  given  to  Dongan  he  was  directed  to  establish  a  court  of 
admiralty.  He  granted  a  commission  to  Luke  Santon  to  act  as  judge  in  admiralty, 
and  Santon  heard  several  cases,3  but  no  court  was  erected.  Leisler,  during  his  brief 
administration,  issued  a  commission  for  a  court  of  admiralty,  and  placed  De  Lanoy, 
whom  he  had  appointed  judge  of  the  oyer  and  terminer,  at  the  head  of  it.4  Upon 


1  Lord  Bellamont's  Letter  to  the  Lords  of  Trade  and  Plantation,  Dec.  15, 1693.    4  Col.  Doc.  411. 

2  Eec.  of  Wills  in  N.  Y.  Surrogate's  office,  vol.  i.  5. 

3  Rec.  of  "Wills  in  N.  Y.  Surrogate's  office,  vol.  i. 
*  2  Doc.  History  N.Y.  36, 164. 

E 


52  HISTORY   OF  THE   COURT   AND   OF  THE 

Governor  Fletcher's  arrival,  in  1692,  the  court  was  permanently  established.  He 
authorized  Smith,  the  chief  justice,  to  act  as  admiralty  judge  until  one  ehould  be 
Dominated  by  the  lords  of  admiralty,  and  the  attorney  general,  Graham,  to  act 
as  advocate  for  the  crown,  and  he  appointed,  as  permanent  officers  of  the  court,  a 
register  and  a  marshail.1  The  chief  justices  continued  to  act  for  some  time  there- 
after, until  Bellamont  complained  of  their  inefficiency.  He  urged  the  appointment 
of  an  admiralty  judge,  and  in  1703,  Roger  Mompesson  was  duly  commissioned  as 
admiralty  judge  for  New  York,  New  Jersey,  Connecticut,  Rhode  Island  and  Massa- 
chusetts Bay.a  In  1721,  this  jurisdiction  was  limited  to  New  York,  Connecticut, 
and  New  Jersey,3  and  au  appeal  lay  to  the  high  court  of  admiralty  in  England, 
until  about  1770,  when  an  appellate  court,  called  the  Superior  Court  of  Admiralty 
for  North  America  was  instituted,  to  which  an  appeal  lay  from  all  the  colonial  tri- 
bunals.4 The  court  of  admiralty  was  continued  in  this  state  after  the  revolution, 
until  the  organization  of  the  United  States  District  Court,  by  the  judicial  act  of 
1789.6 

It  has  also  been  stated  that  jurisdiction  in  the  proof  of  last  wills  and  testa- 
ments, and  the  granting  of  letters  of  administration  upon  the  estates  of  intestates, 
was  originally  vested  by  the  duke's  laws  in  the  courts  of  sessions,  and  was  occa- 
sionally exercised  by  the  mayors  court.  The  provisions  in  these  laws  requiring 
wills  to  be  registered  in  the  office  of  records  in  New  York,  gradually  led  to  the  vest- 
ing of  this  jurisdiction  exclusively  in  the  governor.  The  office  of  records  was  in 
charge  of  the  governor's  secretary,  or,  as  he  was  styled,  the  secretary  of  the  province, 
and  in  the  first  year  of  Nicolls'  administration,  he  began  to  grant  letters  of  adminis- 
tration, and  do  other  acts  pertaining  to  estates,  by  virtue  of  his  prerogative.  This 
practice  was  continued  by  his  successors,  and,  in  Dongan's  time,  wills  were  proved 
before  the  governor.6  Under  Sloughter,  all  documents  pertaining  to  the  proof  of 
wills,  or  to  the  administration  of  estates,  were  authenticated  by  a  particular  seal,  de- 
nominated the  seal  of  the  prerogative  office ;  and  this  jurisdiction  became  more  de- 
cided and  settled.7  During  the  administration  of  Governor  Fletcher,  an  act  was 
passed  by  the  general  assembly,  in  1692,  for  regulating  the  probate  of  wills.8  This 
act  provided  that  two  freeholders  should  be  appointed  or  elected  for  every  town, 
whose  duty  it  should  be  to  take  charge  of  the  estates  of  intestates.  It  also  provided 
that  the  probate  of  wills  should  be  made  before  the  governor,  and  that  letters  of 
administration  should  be  granted  by  him,  or  by  such  person  as  he  should  delegate, 
under  the  seal  of  the  prerogative  office.  All  wills  relating  to  estates  in  King's, 
Westchester,  Richmond,  Orange  and  a  few  other  adjoining  counties,  were  required  to 
be  proved  in  New  York,  before  the  governor  or  his  delegate  ;  but,  in  consequence  of 
the  remoteness  of  the  other  counties,  and  the  expense  and  inconvenience  of  bringing 
witnesses,  the  courts  of  common  pleas  were  authorized  to  take  the  proof,  and  trans- 
mit the  proceedings  had  before  them,  under  the  hand  of  the  judge  of  the  court,  and  of  the 


Kec.  of  Corns,  ii.  124.     4  Col.  Doc.  112, 1000.    Stokes,  270. 

Kec.  of  Corns,  ii.  144. 

Kec.  of  Corns,  iii.  217.    1  Smith, 877,  2d.  Ed. 

1  Doc.  History,  512. 

Laws  of  1778,  Holt's  Ed. 

Kec.  of  Wills,  vol.  i. 

Kec.  of  Wills,  vol.  iv.  34,  85.? 

Laws  of  Col.  of  N.  Y.  Bradford's  First  Ed.  of  1692.    1  Jones  &  Vauck's  Ed.  14. 


JUDICIAL  -OKGANIZATTON  OF  THE  STATE.  53 

clerk,  to  the  secretary's  office,  at  New  York.  After  the  passage  of  this  act,  the 
governor  appointed  a  delegate  to  act  as  his  representative  in  the  city  of  New  York ; 
and  the  new  tribunal  thus  organized,  and  presided  over  by  the  governors  delegate, 
took  the  name  of  the  prerogative  court,  to  which  an  appeal  lay  from  any  proceeding 
relating  to  the  probate  of  wills  in  the  courts  of  common  pleas,  or  from  any  of  the 
acts  of  those  empowered  in  the  towns  to  take  charge  of  the  estates  of  intestates. 
Delegates  subordinate  to  the  governor's  representative  at  New-York  were  appointed 
by  the  governor,  for  particular  parts  of  the  state  or  counties — usually  judicial  officers, 
with  this  duty  superadded * — and  the  freeholders  of  the  towns  appointed  or  elected 
under  the  act  of  1692,  to  take  charge  of  the  estates  of  intestates,  also  took  the  name 
of  delegates,  and,  in  course  of  time,  the  term  surrogate,  which  means  (surrogatus)  a 
substitute,  deputy  or  delegate,  gradually  came  into  use,  to  designate  all  these  subordi- 
nate delegates,  and  has  continued  in  use  ever  since,  to  designate  this  class  of  public 
officers.  In  1754,  a  judge  of  probate  for  the  province  was  appointed,  with  gene- 
ral power  to  take  proof  of  wills,  and  to  administer  estates.  The  tribunal  over  which 
he  presided  was  termed  the  court  of  probate,  while  the  prerogative  court,  which 
appears  thereafter  to  have  been  under  the  direction  of  the  governor's  secretary,  was 
continued,  with  certain  powers,  until  the  revolution.2  By  the  act  of  1778,  all  the 
powers  which  had  been  vested  in  the  governor  of  the  colony,  as  judge  of  the  prero- 
gative court,  or  in  the  court  of  probate,  except  in  the  appointment  of  surrogates, 
was  vested  alone,  thereafter,  in  the  court  of  probate,  and  Lewis  Graham  was  ap- 
pointed judge  of  the  court  by  the  council  of  appointment;3  and,  in  1787,  an  act 
was  passed,  directing  that  surrogates  should  be  appointed,  thereafter,  for  every 
county.4  The  judge  of  the  court  of  probate  had  jurisdiction,  in  all  cases  of  persons 
dying  out  of  the  state,  or  of  persons  dying  within  the  state,  who  were  not  inhabit- 
ants, with  a  general  appellate  jurisdiction  over  the  surrogate  courts.  In  1823,  the 
court  of  probate  was  abolished,  and  its  appellate  jurisdiction  transferred  to  the  court 
of  chancery — the  surrogate  still  continuing — their  duties  being  prescribed  by  various 
statutory  enactments.8 

In  1753,  the  right  of  appeal  from  the  decisions  of  the  supreme  court  or  of  the  court 
of  chancery,  to  the  governor  and  council,  which  had  previously  been  allowed,  when 
the  amount  involved  exceeded  £100,  and  from  the  decisions  of  the  governor  and 
council  to  the  king  and  privy  council,  when  it  exceeded  £300,  was  allowed  only  to 
the  governor  and  council  when  it  exceeded  £300 ;  and  to  the  king  and  privy  council 
when  it  exceeded  £500  ;  a  limitation  which  was  bitterly  complained  of,  as  cutting 
off  the  right  of  appeal  in  the  great  majority  of  cases.6 

In  1730,  Governor  Montgomery  granted  to  the  city  of  New  York  an  amended 
charter.  It  directed  that  the  court  of  sessions  should  hold  four  terms  a  year ;  and 
that  the  mayor's  court  should  set  every  Tuesday.  It  further  provided,  that  the 
mayor,  recorder  and  aldermen,  or  any  one  of  them,  might  try  causes,  with  or  without 
a  jury,  where  the  amount  in  controversy  did  not  exceed  forty  shillings;  and  created 


i  2  Thompson's  Long  Island,  442.    Account  of  Tangier  Smith. 

a  Eec.  of  Corns.  T.  70,  412,  418,  419 ;  vi.  201.    Eec.  of  Wills  and  Deeds,  in  N.  Y.  Surrogated 
Office,  vols.  xi.  xiv.  xix.    Eec.  of  Wills,  in  same  office,  vols.  i.  iv.  vi. 
s  Laws  of  N.  Y.  17T8, 12,  Holt's  ed.    Eec.  of  Corns,  vi.  201. 

*  Laws  of  1T8T,  Jones  &  Yauck's  edit,  printed  by  Gaines,  72. 
•Laws  of  1823,  62. 

•  1  Smith,  878. 


54:  HISTORY   OF   THE   COURT  AND   OF  THE 

eight  attorneys  of  the  mayor's  court,  all  of  -whom  were  named  in  the  charter.  No 
other  attorneys  but  those  named  were  authorized  to  practice  in  the  court ;  and  upon 
the  death  or  removal  of  any  one  of  them,  the  successor  was  nominated  by  the  court 
and  approved  by  the  governor.  As  thus  constituted,  the  mayor's  court  and  court 
of  sessions  continued  until  the  revolution. 

At  the  breaking  out  of  the  revolution,  Chief  Justice  Horsmanden,  Justices  Thomas, 
Jones  and  George  D.  Ludlow,  and  Jauucey,  the  master  of  the  rolls,  adhered  to  the 
cause  of  the  crown  j1  while  Justice  Robert  R.  Livingston2  Joined  the  revolutionary 
party.  The  royalists  retained  possession  of  New  York,  Long  Island  and  a  part  of 
Westchester,  and  within  these  limits  the  judges  who  had  adhered  to  the  royal 
cause  continued  to  exercise  jurisdiction.  Justices  Jones  and  Ludlow  retired  to  their 
farms  on  Long  Island,  but  Horsmanden  remained  in  the  city  of  New  York,  and  con- 
tinued to  exercise  his  functions  until  his  death,  in  1778,3  when  the  sole  administra- 
tion of  judicial  affairs  was  entrusted  to  Justice  Ludlow.  Two  years  after,  in  1780, 
Ludlow,  in  addition  to  his  powers  as  justice  of  the  supreme  court,  was  created 
master  of  the  rolls,  with  power  to  "hear  and  determine  controversies  until  civil  gov- 
ernment should  be  restored."  He  also  acted  as  judge  in  admiralty,  and  was  ap- 
pointed superintendent  of  police  for  Long  Island.4  In  the  same  year,  1780,  Rob- 
ertson, the  last  of  the  royal  governors,  issued  a  conciliatory  proclamation,  announcing 
that  he  had  brought  out  a  royal  appointment  for  supplying  the  place  of  chief  jus- 
tice ;  and  that  as  soon  as  the  public  exigencies  would  permit,  he  would  give  an 
order  for  opening  the  courts  of  judicature,  and  convene  the  assembly.5  But  his  proc- 
lamation produced  no  effect,  and  he  did  nothing  under  it  until  the  following  year, 
when  he  held  a  court  of  chancery,  in  person,  about  once  every  month,  from  the  24th 
of  January,  1781,  until  the  9th  of  June,  1783.6  But  little  can  now  be  ascertained 
respecting  judicial  proceedings  in  this  part  of  the  state,  during  this  period,  as  the 
loyalists  carried  off  the  records  relating  to  it,  which  had  been  kept  in  the  city  of  New 
York.7  It  is  merely  known  that  Justice  Ludlow  continued  to  act  as  the  principal 
judge,  until  the  close  of  the  war,  when  he  went  to  Canada,  and  became  chief  justice 
of  the  province  of  New  Brunswick.8 


i  Act  of  Banishment  and  Forfeiture,  22d  of  Oct  17T9.  1  Greenleaf's  Laws  of  N.  Y.  26.  Act  of 
Restoration,  April  3, 1790.  Laws  of  N.  Y.  13th  sess.  Child's  &  Suaine's  ed.  Sabine's  American 
Loyalists,  36T,  885,  461. 

Sedgwick's  Life  of  Wm.  Livingston.    Journals  of  Provincial  Congress  of  N.  Y. 

Lon.  Doc.  xlvi.  157.    Rec.  of  Trinity  Church  lor  17T8. 

Sabine's  American  Loyalists,  367,  385  and  431. 

4  N.  Y.  Doc.  History,  655. 

Records  for  1781-2-3. 

Lon.  Doc.  xlvii.  52,  61.    Tryon's  Letter. 

As  Judge  Ludlow  was  the  last  of  the  colonial  judges,  and  as  but  little  is  known  respecting 
him,  it  may  not  be  out  of  place  to  state  what  has  been  collected  chiefly  from  traditional 
but  very  reliable  sources  of  information.  He  was  originally  apprenticed  to  an  apothecary,  but 
disliking  that  pursuit,  he  studied  law.  Though  an  assiduous  student,  his  friends  generally  pre- 
dicted his  failure,  as  he  had  a  serious  impediment  in  his  speech  ;  and  were  very  much  surprised,  at 
seeing  him,  when  he  appeared  in  his  first  cause,  acquit  himself  with  an  ease  and  fluency  altogether 
unexpected.  In  commencing  practice,  he  gave  his  attention  exclusively  to  commercial  matters, 
and  acquired  so  much  proficiency,  that  he  was  constantly  employed,  either  as  an  arbitrator  in  de- 
ciding mercantile  disputes,  or  in  the  adjustment  and  settlement  of  complicated  mercantile  transac- 
tions. This  drew  him  into  commercial  pursuits  and  speculations,  and  having,  by  honest  industry 
and  great  assiduity,  acquired,  at  a  comparatively  early  age,  an  ample  fortune,  he  retired  to  a  hand- 


JUDICIAL  ORGANIZATION   OP  THE   STATE.  55 

As  soon  as  the  news  of  the  battle  of  Lexington  reached  New  York,  a  republican 
convention  was  called ;  but  after  sitting  three  days,  it  adjourned,  recommending 
that  the  inhabitants  of  each  county  should  elect  delegates  to  a  general  convention. 
In  pursuance  of  this  recommendation,  the  electors  met  in  the  towns  and  districts  of 
the  several  counties ;  but  instead  of  electing  delegates  directly,  they  elected  for  each 
county  a  county  committee,  and  this  committee  appointed  delegates  to  the  general 
convention,  or,  as  it  was  called,  the  provincial  congress.  The  provincial  congress  met 
on  the  22d  of  May,  1775,  and  was  mainly  occupied  with  the  general  interests  of  the 
republican  cause,  while  the  county  committees  exercised  all  the  functions  of  a  civil 
government,  within  their  respective  jurisdictions.  So  far  as  the  provincial  congress 
gave  any  direction,  the  county  committee  conformed  to  it ;  but  they  generally  acted 
on  their  own  responsibility,  exercising  legislative,  executive  and  judicial  functions. 
As  the  county  committees  were  large,  they  could  not,  at  all  times,  be  readily  con- 
vened, and  accordingly  sub-committees  were  appointed  or  elected  in  some  cases 
for  particular  districts  in  the  county ;  and  in  the  locality  for  which  they  were  ap- 
pointed or  elected/these  sub-committees  exercised  all  the  powers  vested  in  the  commit- 
tee of  the  county,  but  subject  to  its  supervision  and  control.1  The  republican  or- 
ganization, therefore,  consisted  of  the  district  committees  in  each  county,  the  general 
county  committee,  and  a  provincial  congress  for  the  colony  at  large,  composed  of  de- 
legates from  the  several  counties.  The  exercise  of  judicial  powers  was  entrusted  al- 
most exclusively  to  the  district  committees.  They  were  usually  composed  of  two 
or  three  persons ;  their  proceedings  were  entirely  ex  parte,  and  consisted  mainly  in 
arresting  and  imprisoning  all  who  were  supposed  to  be  favorable  to  the  interests  of 
the  royalists,  or  who  spoke  disrespectfully  of  the  republican  cause,  its  leaders  or  ad- 
herents. The  slightest  suspicion  or  any  expression  of  unfriendliness  was  sufficient  to 
justify  an  arrest,  and  imprisonment  without  bail,  for  an  indefinite  period ;  and  where, 
as  was  frequently  the  case,  individuals  were  arrested  without  cause,  they  had  not 
only  to  suffer  imprisonment  before  they  could  obtain  their  discharge,  but  were  com- 
pelled, upon  receiving  it,  to  pay  all  the  costs  and  expenses  that  had  been  incurred  by 
the  unfounded  proceedings  against  them.2  In  fact,  in  the  disturbed  state  of  affairs, 
these  tribunals  were  resorted  to  and  made  use  of  to  gratify  the  private,  malice  or 
the  vindictive  feelings  of  individuals;  and  their  unjust  and  arbitrary  proceedings 
gave  rise  to  loud  and  general  complaint.  This  state  of  things  lasted  for  about  two 
years,  when,  in  conformity  with  the  resolution  of  the  continental  congress,  delegates 
were  elected  to  a  convention  to  organize  a  government.3  This  body,  'which  was  denomi- 
nated the  "convention  of  the  representatives  of  the  state  of  New  York,"  assembled 
at  White  Plains,  on  the  9th  of  July,  1776;  and  after  shifting  from  place  to  place,  to 
avoid  the  approach  of  the  enemy,  the  delegates  finally  assembled  at  Kingston ;  and  on 


some  estate  which  he  had  purchased  upon  Long  Island.  Shortly  after  his  retirement,  he  was  ap- 
pointed judge  of  the  court  of  common  pleas,  in  which  he  gave  so  much  satisfaction,  that  in  1769, 
he  was  made  a  puisne  judge  of  the  supreme  court.  Though  he  labored  under  the  disadvantage 
of  deafness,  in  addition  to  the  impediment  in  his  speech,  he  was,  nevertheless,  an  excellent  judge, 
a  man  of  great  integrity,  of  extensive  information,  and  in  private  life  a  most  agreeable  and  enter- 
taining companion.  See  a  notice  of  him  in  Sabine's  American  Loyalists,  431. 

1  Journals  of  the  Provincial  Convention,  Congress  and  Committee  of  Safety. 

2  Life  of  Peter  Van  Schaack,  by  his  Son,  6*.    Letter  of  Van  Schaack,  Appendix  E. 

3  Journals  of  Provincial  Congress  of  N.  T.  462,468.    B.  F.  Butler's  Discourse  before  the  His- 
torical Society.    1  His.  Soc.  Col.  2d  series,  48. 


00  HISTORY  OF  THE  COURT  AND   OF  THE 

the  20th  of  April,  1777,  after  the  passage  of  a  preamble  declaring,  among  other 
things,  that  great  inconveniences  had  attended  the  mode  of  governing  by  a  congress 
and  committees,  the  convention  adopted  the  first  constitution  of  the  state.  The 
constitution  made  no  material  change  in  the  judicial  organization  which  had  pre- 
viously existed,  except  the  creation  of  a  court  of  last  resort,  for  the  trial  of  im- 
peachments and  the  correction  of  errors,  composed  of  the  lieutenant  governor,  the 
senators,  the  judges  of  the  supreme  court  and  the  chancellor.  It  recognized  the  su- 
preme court,  the  court  of  chancery,  and  the  county  courts,  as  existing  tribunals, 
so  that  whatever  doubt  may  have  existed  as  to  the  validity  of  these  tribunals, 
was  put  at  rest  by  this  instrument.1  On  the  8th  of  May  following,  the  com- 
mittee of  safety  sat  to  organize  a  government,  and  elected  Justice  Livingston  chan- 
cellor, being  the  first  appointment  of  such  an  officer  in  our  judicial  annals.  John 
Jay  was  elected  chief  justice  of  the  supreme  court.  Robert  Yates  and  John  Sloss 
Hobart,  puisne  judges,  and  Egbert  Benson  attorney  general.  First  and  associate 
judges  were  also  appointed  for  the  several  counties  of  the  state  ;a  and  on  the  17th 
of  October  following,  the  chancellor  and  the  justices  of  the  supreme  court  were 
formally  commissioned,  and  entered  upon  the  discharge  of  their  duties,  holding 
courts  in  the  different  parts  of  the  state,  not  in  possession  of  the  British,  as  the  public 
exigencies  demanded.  On  the  23d  of  October,  1779,  an  act  was  passed  creating  a 
council  or  committee  for  the  southern  district  of  the  state,  composed  of  the  governor, 
the  representatives  in  the  senate  and  assembly,  the  chancellor,  the  justices  of  the 
supreme  court,  the  attorney  general  and  the  judges  of  the  several  counties.  As  a 
period  would  necessarily  intervene  between  the  time  when  the  enemy  might  abandon 
or  be  dispossessed  of  the  southern  part  of  the  state,  and  the  assembling  of  the  legis- 
lature in  the  city  of  New  York,  this  council  was  invested  with  authority  to  govern 
in  that  part  of  the  state,  in  the  interim.  Any  seven,  of  whom  the  governor  was 
required  to  be  one,  were  empowered  to  act  for  sixty  days,  from  the  day  that  they 
should  be  convened  in  that  part  of  the  state,  unless  the  legislature  should  meet 
before  the  expiration  of  that  period.8  This  committee  or  council  were  organized 
shortly  after  the  evacuation  of  New  York  by  the  British,  on  the  25th  of  Novem- 
ber, 1783,  and  continued  in  power  until  the  meeting  of  the  legislature  on  the  12th  of 
February,  1784,  having  passed  five  important  ordinances,  which  were  subsequently 
confirmed  and  ratified  by  the  legislature.4  After  the  close  of  the  war,  the  supreme 
court  was  held  respectively  at  the  cities  of  New  York  and  Albany,  the  judges  per- 
forming circuits  through  the  counties  as  before,  for  the  trial  of  causes  at  nisi  prius. 
In  1792,  the  number  of  justices  was  increased  by  the  addition  of  another  puisne 
judge;5  and  in  1794,  an  additional  puisne  judge  was  added  ;6  and  the  court,  as  thus 
constituted,  with  a  chief  justice  and  four  puisne  judges,  all  of  whom  held  their  offices 
during  good  behavior,  or  until  they  attained  the  age  of  sixty  years,  continued  un- 
changed until  the  adoption  of  the  amended  constitution  of  1823.7  Chancellor  Liv- 


Court  of  N.  T.  1T77,  xxiv.  xxv.  xxxii. 
Journal  of  Convention,  910,916,918. 
Laws  of  N.  Y.  8d  session,  1779—96. 
Laws  of  N.  Y.,  7th  session,  1784,  Holt's  ed.  5. 

21st  Dec.,  1792,  Aaron  Burr  was  appointed,  but  having  declined,  Morgan  Lewis  was  appointed 
in  his  place. 

29th  Jan.,  1794,  Egbert  Benson  was  appointed. 
Graham  on  Jurisdiction,  144. 


JUDICIAL  OKGANIZATION   OF  THE  STATE.  57 

ingston  continued  to  serve  until  he  was  appointed  minister  to  France,  in  1801,  when 
he  was  succeeded  by  John  Lansing  as  chancellor,  who  was  succeeded,  in  1814,  by 
Chancellor  Kent. 

The  subsequent  changes  that  were  made  in  the  judicial  organization  of  the  state, 
before  the  adoption  of  the  amended  constitution  of  1846,  will  be  noticed  very 
briefly,  as  this  sketch  has  extended  much  beyond  the  limits  originally  intended ;  and 
some  space  must  be  devoted  to  complete,  in  pursuance  of  the  original  design,  the  ac- 
count of  the  court  of  common  pleas.  A  very  full  statement,  moreover,  of  these 
changes  has  already  been  given  in  Mr.  Butler's  Discourse  before  the  Historical  Society, 
on  the  constitutional  history  of  the  state ;  and  whatever  is  required  in  addition  can  be 
readily  found  in  the  several  editions  of  the  revised  statutes,  and  in^Mr.  Huff's  New 
York  Civil  List,  now  in  press,  which  contains  an  enumeration  of  the  officers  and  courts 
since  the  re  volution. 

The  constitution  of  1823  materially  altered  the  structure  of  the  supreme  court, 
both  as  respects  the  number  of  its  judges  and  the  nature  of  their  duties.  It  pro 
vided  for  the  division  of  the  state  into  judicial  circuits,  in  each  of  which  there  was 
to  be  a  circuit  judge,  who  was  to  try  causes  at  nisi  prius,  hold  the  court  of 
oyer  and  terminer,  and  discharge  all  the  duties  pertaining  to  a  justice  of  the  su- 
preme court  at  chambers,  and  it  created  three  justices  of  the  supreme  court,  a  chief 
justice  and  two  associates,  clothed  with  all  the  powers  of  -the  circuit  judges,  but 
who  were  to  constitute  a  superior  tribunal  for  reviewing  the  decisions  of  the  circuit 
courts,  the  courts  of  oyer  and  terminer,  and  of  all  inferior  jurisdictions.  After  the 
adoption  of  the  constitution,  the  legislature  divided  the  state  into  eight  judicial  cir- 
cuits, corresponding  in  number  and  extent  with  the  senate  districts,  to  each  of  which 
a  circuit  judge  was  appointed.1  The  constitution  also  provided,  that  equity  powers 
might  be  vested  in  the  circuit  judges  ;  in  conformity  with  which,  an  act  was  passed 
in  1823,2  creating  equity  courts  in  each  circuit,  to  be  held  by  the  circuit  judge  ;  but 
shortly  afterwards,  distinct  courts  of  equity  were  abolished,  and  general  jurisdiction 
in  equity  concentrated  in  the  chancellor,  with  equity  powers  in  the  circuit  judges, 
as  vice  chancellors.  In  1831,3  owing  to  the  great  increase  of  equity  business  in  the 
city  of  New  York,  the  offices  of  vice  chancellor  and  circuit  judge  were  disunited, 
and  a  separate  vice  chancellor  created  for  the  first  circuit  In  1839,  in  consequence 
of  the  further  increase  of  business,  an  assistant  vice  chancellor,  for  the  first  circuit, 
was  created  for  the  period  of  three  years ;  but  in  the  following  year,  1840,4  the  office 
was  made  permanent,  and  the  assistant  vice  chancellor  authorized  to  hear  any  cause 
pending  before  the  chancellor,  or  before  any  vice  chancellor,  and  the  court  of  chancery 
continued  thereafter,  composed  of  a  chancellor,  a  vice  chancellor  of  the  first  circuit,  an 
assistant  vice  chancellor,  with  the  circuit  judges  acting  as  vice  chancellors  in  the 
other  circuits,  until  the  court  was  abolished  by  the  constitution  of  1846.  All  the 
judicial  officers  here  referred  to  held  their  offices  during  good  behavior,  and  until 
they  should  attain  the  age  of  sixty  years.  The  remaining  chancellors  were,  Nathan 
Sandford,  Samuel  Jones  and  Reuben  H.  "Walworth.5 


1  Graham  on  Jurisdiction,  142. 
a  April  IT,  1823. 

3  Laws  of  1881,  p.  12. 

4  Laws  of  1840,  chap.  314. 

5  "W.  J.  McCoun  was  the  first  vice  chancellor  of  the  first  circuit.    He  held  the  office  until  he 


58  HISTORY   OF  THE   COTTET  AND   OF  THE 

The  courts  of  common  pleas,  other  than  for  the  city  and  county  of  New  York, 
were  re-organized  after  the  passage  of  the  constitution  of  1823,  and  consisted  of  a  first 
judge,  who  was  required  to  be  of  the  degree  of  counsellor  at  law,  and  four  asso- 
ciate judges,  all  of  whom  were  appointed  by  the  governor.  In  1828,  the  superior 
court  of  the  city  of  New  York  was  created,  with  a  chief  justice  and  two  associate 
justices,  appointed  by  the  governor  and  senate,  for  the  term  of  five  years.  It 
was  empowered  to  try  all  actions  at  law,  without  any  limitation  as  to  amount,  where 
the  process  was  served  in  the  city  of  New  York ;  to  grant  new  trials,  and  generally 
to  exercise  all  the  powers  of  a  court  of  record,  and  it  was  made  the  appellate  court 
for  the  review  of  the  judgments  of  the  marine  court,  and  the  courts  of  assistant 
justices  in  the  city.  This  appellate  jurisdiction,  however,  was  afterwards  transferred 
to  the  court  of  common  pleas.  By  subsequent  enactments  the  number  of  justices 
was  increased  to  six.1 

The  courts  of  justices  of  the  peace  have  undergone  too  many  modifications  and 
changes  since  the  revolution  to  be  noticed  in  detail.  An  enumeration  of  the  various 
acts  relating  to  them  will  be  found  in  Chancellor  Kent's  notes  to  the  Charters  of  the 
city  of  New  York.2  In  1 807,  assistant  justice's  courts  were  established  in  each  of  the 
wards  in  the  city  of  New  York,  with  jurisdiction  to  the  extent  of  $25.  They  have 
also  been  the  subject  of  many  statutory  enactments  and  changes,  and  are  now  de- 
nominated district  courts.  In  the  same  year,  1807,  a  justice's  court  was  created  for 
the  city  of  New  York,  consisting  of  three  justices,  with  power  to  try  causes  be- 
tween $25  and  $50,  and  marine  causes,  between  master  and  mariner,  though  beyond 
that  amount.3  In  1819,  its  name  was  changed  from  the  justices'  court  to  the 
marine  court,  In  1817,  its  jurisdiction  was  increased  to  $100  ;  and,  in  1853,  it  was 
authorized  to  try  actions  of  assault  and  battery,  false  imprisonment,  malicious  pro- 
secution, libel  and  slander,  and  its  general  jurisdiction  was  extended  to  five  hundred 
dollars.4 

As  there  is  a  chasm  in  the  public  records  of  the  city  of  New  York,  from  the  27th 
of  June,  1774,  to  the  10th  of  February,  1784,  it  is  not  known  whether  the  mayor's 
court  was  held  during  that  period.  At  the  breaking  out  of  the  revolution,  White- 
head  Hicks,  an  eminent  lawyer,  was  mayor — a  position  he  had  held  uninterruptedly 
for  ten  years.  He  resigned  in  1776,  and  was  appointed  a  justice  of  the  supreme 
court,  in  place  of  Livingston  ;  but  inclining  to  the  republican  cause,  he  went,  shortly 
after,  into  retirement,  and  died  before  the  end  of  the  war.  He  was  succeeded  in 
the  office  of  mayor  by  David  Matthews,  then  an  alderman  of  one  of  the  wards — sub- 
sequently tried  by  a  revolutionary  committee  for  a  conspiracy  against  the  republican 
cause,  and  condemned  to  death,  but  reprieved,6  and  who  appears  to  have  been  acting, 
afterwards,  as  mayor,  in  1780.6  Upon  the  evacuation  of  the  city  by  the  enemy, 

reached  the  age  of  sixty,  -when  he  was  succeeded  by  Lewis  H.  Sandford.  Murray  Hoffman  was 
appointed  assistant  vice  chancellor,  and  was  succeeded  by  Lewis  H.  Sandford,  in  1843,  who  was 
succeeded  by  Anthony  L.  Kobertson,  as  assistant  vice  chancellor. 

Laws  of  1828,  p.  141. 

Kent's  Notes,  xliv.  261. 

Laws  of  180T,  chap.  139. 

Laws  of  1853,  chap.  61T. 

Minutes  of  the  Trial  and  Execution  of  certain  Persons  for  Conspiracy  against  the  Liberties  Of 
America.  London,  J.  Burr,  1776. 

6  2  Dunlap,   App.  ccxxxiv.  ccxli.     Valentine's  Manual  of  City  of  New- York,  for  1S53,  409 
and  410. 


JUDICIAL  ORGANIZATION  OF  THE  STATE.  59 

measures  were  taken  to  reorganize  the  municipal  government.  In  the  beginning  of 
1784,  James  Duane  was  appointed  mayor,  by  Governor  Clinton,  and  Richard  Varick, 
recorder,  and  the  mayor's  courts  and  the  courts  of  sessions  were  re-opened.  Immedi- 
ately upon  his  appointment,  Duane  framed  a  series  of  thirty  five  rules,  to  regulate 
the  practice  of  the  mayor's  court,  which  he  convened  on  the  10th  of  February,  1784, 
a  few  days  after  his  appointment ;  and,  after  publicly  adopting  the  rules,  and  breaking 
up  the  monopoly  which,  for  over  half  a  century,  had  limited  the  practitioners  of  the 
court  to  eight,  by  an  order  authorizing  all  attorneys  of  the  supreme  court  to  practice 
in  it,  he  adjourned  the  court  for  three  weeks,  to  afford  an  opportunity  for  the  issuing 
and  return  of  process.  Upon  the  adjourned  day,  24th  of  February,  1784,  Colonel 
Varick  took  his  seat  as  recorder,  with  Duane,  and  the  regular  business  of  the  court 
was  resumed.  On  that  day,  one  hundred  and  sixteen  writs  were  returned,  and 
the  leading  practitioners  who  appeared  to  prosecute,  or  answer  to  them,  were  Alex- 
ander Hamilton,  Aaron  Burr,  Colonel  Troup,  William  S.  Livingston  and  William  B. 
Livingston.  On  the  next  adjourned  day,  there  were  one  hundred  and  sixty-seven  new 
writs  returned,  and,  at  the  session  iu  July,  there  were  one  hundred  and  ninety-eight.1 
The  concentration,  at  once,  of  this  large  amount  of  business  in  the  court — which  was 
quadruple  that  of  the  supreme  court,  and  embraced  actions  of  all  kinds  and  descrip- 
tions— was  owing  to  the  great  confidence  felt  in  the  legal  ability  of  Duane,  and  the 
facility  afforded,  by  the  frequent  sessions  of  the  court,  for  the  speedy  dispatch  of 
business.  From  his  learning,  industry  and  capacity,  Duane  had  attained  a  high  rank 
in  his  profession  before  the  revolution,  and  was  in  large  practice  when  that  event 
took  place.2  Through  the  whole  of  the  war,  he  had  been  a  member  of  the  provincial 
congress  of  New- York,  of  the  committee  of  safety,  and  of  the  convention  that  adopted 
the  constitution  of  the  state,  and  a  delegate  to  the  continental  congress.  He  was  a 
member  of  that  body  at  the  time  of  the  signing  of  the  Declaration  of  Independence, 
though  then  attending  the  provincial  congress  of  New  York,  was  afterwards  a  mem- 
ber of  the  celebrated  committee  appointed  to  state  the  rights  of  the  colonies,  and 
framed  the  preamble  and  resolutions  reported  by  it,  and  adopted  by  congress,  and 
he  was  one  of  the  special  committee  of  three,  in  1777,  that  prepared  the  final  draft 
of  the  articles  of  confederation.  The  high  character  of  Duane  drew  into  the  court 
every  lawyer  of  ability  ;  and,  for  more  than  a  quarter  of  a  century  afterwards,  it 
became,  in  view  of  the  men  who  presided  in  it,  and  of  those  who  practiced  before 
it,  not  only  the  leading  court  in  the  city,  but  one  of  the  most  eminent  judicial  tribu- 
nals in  the  state.  During  the  mayoralty  of  Duane  and  Varick,  and  while  Samuel 
Jones — father  of  the  late  chief  justice — Chancellor  Kent  and  Richard  Harrison  were 
successively  recorders — that  is,  until  the  close  of  the  year  1800  :  the  leading  prac- 
titioners in  the  court  were  Alexander  Hamilton,  Aaron  Burr,  Colonel  Troup,  Edward 
Livingston,  Brockholst  Livingston,3  Egbert  Benson,  Morgan  Lewis  and  Josiah  Ogden 
Hoffman  ;4  all  of  them,  at  the  commencement  of  this  period,  young  men,  whose 
first  forensic  efforts  were  made  in  the  mayor's  court. 


*  Eec.  of  Mayor's  Court,  for  17S4. 

a  4  Doc.  History,  461.    Jones'  Memoir  of  Duane. 

8  Judge  of  the  Supreme  Court  of  New  York,  until  1806,  and  from  that  year,  until  1823,  one  o  f 
the  associate  justices  of  the  Supreme  Court  of  the  United  States. 

4  Father  of  Ogden  Hoffman,  Esq.  Attorney  general  from  1T95  to  1802,  and  associate  justice 
of  the  New  York  Superior  Court,  from  its  creation  until  his  death. 


60  HISTORY   OF  THE   COTTBT  AND   OF  THE 

In  fact,  so  popular  was  the  court,  so  great  the  confidence  felt  by  suitors  and  by 
the  profession,  that  although  it  was  in  the  power  of  the  defendant  to  remove  a  cause 
into  the  supreme  court  for  trial,  where  the  amount  exceeded  £20,  the  privilege  was 
rarely  resorted  to ;  and  its  records  show,  that  cases  presenting  questions  of  the 
highest  importance,  and  involving  large  amounts  of  property,  were  constantly  adju- 
dicated before  it. 

Burr  got  more  rapidly  into  practice  than  Hamilton.  The  extent  of  a  lawyer's 
business,  at  that  time,  was  judged  by  the  number  of  writs  he  sued  out  or  to  which 
he  appeared  ;  and  at  the  first  day  of  the  session  of  the  court,  in  July,  1784,  Burr 
prosecuted  or  appeared  to  seventeen  writs.  Hamilton's,  at  the  following  term, 
amounted  to  thirteen ;  but  William  S.  Livingston  exceeded  both  of  them,  in  the 
amount  and  variety  of  his  business.  At  a  single  session,  in  July,  he  answered  to 
sixty  seven  writs.  At  the  preceding  May  term,  Cornelius  Bogert  was  admitted  to 
practice,  upon  the  production  of  a  license  from  the  supreme  court.  He  is  the  first 
lawyer  whose  name  appears  upon  the  rolls  as  specially  admitted ;  and  after  the 
lapse  of  seventy  years  is  still  alive,  having  retired  but  recently  from  the  active 
pursuit  of  his  profession. 

The  first  case  in  which  Hamilton  appeared,  and  one  of  the  most  important 
judgments  of  Duane,  was  Rutgers  v.  Waddington,  a  case  which  brought  under 
discussion  the  powers  of  the  confederated  states  and  the  rights  of  the  individual 
states,  and  which  is  especially  interesting,  as  it  first  drew  Hamilton's  attention 
to  the  consideration  of  principles  growing  out  of  the  union  of  the  states,  and 
the  establishment  of  independence,  principles  which  he  afterwards  elaborated  in 
the  discussion  of  the  National  Convention  of  1787,  in  the  papers  of  the  Federalist, 
and  in  the  debates  of  the  New  York  Convention  of  1788;  and  which  were  subse- 
quently embodied  in  the  constitution  of  the  United  States.  In  17831  an  act  was 
passed  providing,  that  any  one  who,  by  reason  of  the  invasion  of  the  enemy,  had 
left  his  place  of  abode,  might  bring  an  action  of  trespass,  and  recover  damages 
against  any  person  who  had  occupied  it,  or  had  injured  his  real  or  personal  property, 
or  against  any  one  who  had  received  his  goods  or  effects,  while  the  same  was  under 
the  control  of  the  enemy ;  and  prohibiting  the  defendant  from  pleading  or  giviug  in 
evidence,  as  a  defence,  that  the  property  was  occupied,  injured  or  destroyed  by  a 
military  order  or  command.  The  action,  which  was  the  first  under  the  statute,  was 
brought  to  recover  six  years'  rent  for  the  occupation  by  the  defendant,  of  a  brew 
house  in  the  city  of  New  York,  while  the  city  was  in  the  possession  of  the  British. 
The  defendant  plead  the  possession  of  the  city  by  the  British  army ;  a  license  from 
the  commissary  general,  in  1778,  to  him,  a  British  subject,  residing  in  the  city  for  the 
purposes  of  commerce,  to  use  and  occupy  the  premises  until  the  30th  of  April, 
1780;  and  a  direct  authority  from  Sir  Henry  Clinton,  the  commander  in  chief,  to  do 
so,  after  that  period;  and  also  the  treaty  of  peace,  ratified  at  Annapolis,  on  the  14th 
January,  1784,  by  which  all  claims  that  the  citizens  or  subjects  of  either  of  the  con- 
tracting parties  might  have  against  each  other,  for  indemnity  for  injury  or  damage 
done  to  the  public  or  individuals,  during  the  war,  was  relinquished  and  released ; 
to  which  the  plaintiff  demurred.  To  enact,  after  articles  of  peace  had  been  agreed 
to,  that  one  belligerent  might  maintain  an  action  against  another,  to  recover  damages 


March  17, 1783.    Laws  of  N.  Y.  1783.    6  Sergt  McKesson's  edition,  284, 


JUDICIAL  ORGANIZATION  OF  THE  STATE.  61 

for  injuries  or  loss  occasioned  by  the  war,  was  without  precedent  in  tie  history  of 
nations,  and  can  be  explained  only  by  the  intense  bitterness  felt  towards  the  tories 
by  the  revolutionary  party  in  New  York,  who  had  suffered  so  heavily,  in  a  pecuniary 
point  of  view.  From  the  importance  of  the  principle  involved  in  the  suit,  and  the 
large  number  of  cases,  covering  claims  to  an  enormous  amount,  that  depended  upon 
it,  it  excited  a  degree  of  interest  that  no  single  case  in  this  state  has  ever  produced. 
The  defendant,  in  addition  to  William  S.  Livingston  and  Morgan  Lewis,  retained 
Hamilton,  who  had  then  no  rank  or  position  as  a  lawyer,  for  having  been  engaged 
throughout  the  war  in  the  army,  he  had  begun  to  study  law  but  little  more  than  a 
year  previous,  was  then  but  twenty  seven  years  of  age ;  and  his  defence  in  this  case 
was  the  first  exhibition  of  those  extraordinary  powers  afterwards  brought  into  play 
upon  a  wider  theatre.  For  a  man  ambitious  of  legal  fame  or  reputation,  he  had 
every  stimulant  to  exertion,  for  the  full  weight  of  public  opinion  was  against  him,  the 
excitement  that  prevailed  not  being  confined  to  those  who  had  a  pecuniary  interest 
at  stake,  but  extending  to  the  whole  community.  The  revolutionary  struggle  had 
just  been  brought  to  a  close ;  the  city  was  still  in  a  disordered  state,  and  the  antago- 
nistic views  in  respect  to  the  course  and  policy  of  government,  which  afterwards  led 
to  the  formation  of  the  federal  and  democratic  parties,  had  already  become  a  subject 
for  public  agitation.  The  interest,  moreover,  in  this  particular  case,  was  heightened 
by  the  relative  position  of  the  parties,  the  defendant  being  a  wealthy  merchant,  and 
a  British  subject,  who  had  adhered  throughout  to  the  cause  of  the  crown ;  while  the 
plaintiff  was  a  poor  widow,  who  had  lost  every  thing  by  the  war ;  and,  as  if  nothing 
might  be  wanting  to  give  it  an  imposing  effect,  and  excite  the  popular  feeling,  the 
attorney  general  appeared  on  behalf  of  the  plaintiff,  in  connection  with  her  counsel, 
Col.  Troup  and  Messrs.  Lawrence  and  Wilcox ;  and  the  argument  took  place  before 
a  crowded  auditory,  in  a  hall  which  had  been  desecrated  and  defaced  by  the  British 
troops.  Six  of  the  counsel  engaged  were  heard  upon  the  argument,  but  the  leading 
points  were  discussed  mainly  by  Egbert  Benson,  the  attorney  general,  and  Hamilton. 
Hamilton  contended  in  opposition  to  the  attorney  general,  who  relied  upon  the  statute 
and  upon  the  right  of  the  state,  in  its  sovereign  capacity,  to  pass  it ;  that  the  act 
was  in  violation  of  the  law  of  nations,  which,  being  part  of  the  common  law,  had 
become,  by  the  constitution,  the  law  of  the  state ;  and  followed  it  up  by  an  elaborate 
and  masterly  exposition  of  the  rights  of  war,  and  of  the  relation  of  belligerents 
to  each  other,  in  their  capacity  as  individuals,  when  the  war  is  put  an  end  to.  He 
claimed  that  the  defendant  was  covered  and  protected  by  the  treaty,  and  insisted 
that  it  was  not  in  the  power  of  the  state  to  deprive  him  of  that  which  the  treaty  had 
secured  to  him.  The  general  congress  had  become  a  party  to  that  treaty,  and 
if  they  could  not  violate  it,  the  state  could  not.  The  attorney  general  urged, 
that  each  state  was  an  independent  sovereignty,  in  respect  to  its  own  citizens ; 
that  it  had  the  power  to  pass  laws  to  regulate  their  rights,  or  fix  their  liabilities ; 
and  that  it  might  enact  a  law  affecting  the  property  or  person  of  any  one  within 
its  jurisdiction,  the  sovereignty  of  the  people  of  each  state,  in  that  respect,  being 
absolute  and  beyond  control.  To  which  Hamilton  answered,  that  if  such  was  the 
case,  then  the  confederation  was  but  the  shadow  of  a  shade;  and  he  went  into  an 
examination  of  the  nature  of  the  Union,  and  the  principle  of  popular  sovereignty. 

The  sovereignty  of  the  people,  he  said,  began  by  the  compact  which  united  them 
together  in  the  attempt  to  throw  off  the  sovereignty  of  Great  Britain  and  to  establish 
their  own.  They  were  not  an  aggregation  of  states,  each  independent  of  the  other, 


t>^  HISTORY   OF   THE   COURT  AND   OF  THE 

but  bad  confederated  together  for  a  common  object,  and  by  the  articles  of  confedera- 
tion, had  vested  in  a  general  or  national  congress  certain  powers,  essential  to  the 
due  administration  of  their  affairs  in  their  united  or  confederate  capacity.  The 
external  sovereignty  of  the  United  States  could  only  be  recognized  by  a  foreign 
nation,  as  it  was  represented  by  the  states,  in  their  confederate  character,  and  that 
was  through  the  national  congress,  composed  of  delegates  sent  from  the  separate 
states,  and  which  represented  the  whole  people.  A  state  was  prohibited  from  going 
to  war,  except  in  cases  of  actual  invasion,  or  of  a  threatened  invasion  from  Indians,  or 
of  making  treaties  with  foreign  nations.  The  general  power  of  making  war,  or  of 
concluding  peace,  or  of  entering  into  treaties,  being  vested  exclusively  in  the  national 
Congress.  The  making  of  the  treaty  was  consequently  within  the  power  of  con- 
gress ;  it  bound  each  state,  and  no  state  could  pass  a  law  repugnant  to  it,  or  which 
would  violate  any  of  its  provisions. 

The  attorney  general  claimed,  that  whatever  might  be  the  nature  of  the  con- 
federation, it  could  exist  only  by  the  consent  of  the  states,  as  long  as  they  saw 
fit  to  continue  members  of  it ;  and  that  if  a  state  thought  proper  to  return  again 
to  its  original  sovereignty,  it  had  the  power  to  do  so.  To  this  Hamilton  replied 
by  an  argument,  then  advanced  for  the  first  time,  and  which  has  ever  since  been 
regarded  as  the  principal  one,  in  support  of  the  indissolubility  of  the  Union,  and 
was  relied  upon  during  the  discussion  of  the  question  of  nullification,  by  Web- 
ster and  others,  as  unanswerable.  The  state  of  New  York,  he  said,  was  a  party 
to  the  declaration  of  independence,  and  also  to  the  articles  of  confederation.  The 
first  was  a  league  entered  into  by  the  thirteen  colonies,  by  which  they  cast  off  their 
allegiance  to  the  crown  of  Great  Britain,  and,  as  united  colonies,  declared  themselves 
free  and  independent ;  and  the  other  was  an  agreement,  which,  by  its  terms,  was 
for  the  formation  of  a  "perpetual  union."  As  separate  states,  they  had,  therefore, 
entered  into  a  contract  for  purposes  expressed  in  the  instrument,  by  which  the  con- 
tract was  formed,  and  like  any  other  contract,  no  one  party  to  it  could  withdraw  or 
be  released  from  its  obligation  without  the  general  consent  of  the  whole.  To  the 
objection  that  the  mayor's  court,  as  a  state  tribunal,  could  not  disregard  a  law 
of  the  state,  though  it  might  be  in  conflict  with  what  had  been  done  by  the  national 
congress,  he  answered,  that  the  articles  of  confederation  having  made  no  provision 
for  the  establishment  of  a  judiciary,  except  in  cases  of  disputes  between  states,  or  in 
cases  of  captures  or  of  felonies  upon  the  high  seas,  the  state  tribunals  must,  of  neces- 
sity, recognize  judicially,  and  carry  out  the  measures  of  the  national  congress.1 

In  delivering  his  judgment,  Duane  noticed  the  uncommon  ability  with  which  the 
case  had  been  argued,  particularly  by  Hamilton  and  the  attorney  general.  He  held, 
that  the  defendant  was  liable  for  the  rent  of  the  premises  for  the  first  three  years, 
as  its  use,  during  that  period,  could  not  be  regarded  as  having  any  relation  to  the 
war.  The  license  from  the  commissary  general;  conferring  upon  the  defendant  no 
right  to  the  possession,  that  officer  having  no  authority  to  grant  one  ;  but  for  the  re- 
maining three  years,  during  which  it  was  held  under  an  order  from  Sir  Henry  Clin- 
ton, to  whom,  or  to  whose  agent,  the  rent  had  been  annually  paid,  he  held,  that  the 
defendant  was  not  liable.  By  the  law  of  nations,  restitution  of  the  rents  or  issues 


i  Eec.  of  Mayor's  Court,  1784  Papers  in  Rutgers  v.  Waddington,  on  file  in  the  Court  of  Com- 
mon Pleas.  Synopsis  of  Hamilton's  Brief,  in  2  '.Hamilton's  Life,  by  his  Son,  p.  214.  2  Davis' 
Memoirs  of  Burr,  45.  4  Doc.  Hist,  of  N.  Y.  641 . 


JUDICIAL   ORGANIZATION   OF   THE   STATE.  60 

of  houses  or  land,  collected  bona  fide,  under  the  authority  of  a  commander  in 
chief,  while  in  the  possession  of  the  city,  during  a  state  of  war,  could  not  be  enforced. 
The  law  of  nations  had  become,  by  the  state  constitution,  the  law  of  the  state ; 
and  must  be  regarded  as  a  fundamental  law,  applicable  to  and  in  force  throughout 
the  whole  confederacy.  By  the  federal  compact,  the  states  were  bound  together  as 
one  independent  nation.  In  respect  to  each  other,  and  in  their  national  affairs,  they 
exercised  a  joint  sovereignty,  the  will  of  which  could  only  be  expressed  by  the  acts 
of  the  delegates  of  the  separate  states  in  congress  assembled.  Abroad,  the  states 
could  only  be  recognized  in  their  federal  capacity  ;  and  having  combined  together  and 
formed  a  nation,  they  must  be  governed  by  the  law  of  nations.  No  one  state  could 
arrogate  to  itself  the  right  of  changing  at  pleasure  those  laws  which  are  received 
as  a  rule  of  conduct  by  the  common  consent  of  the  civilized  world. 

For  a  separate  state  to  alter  or  abridge  any  one  of  the  known  laws  of  nations,  was 
contrary  to  the  nature  of  the  confederacy,  in  conflict  with  the  intention  of  the  articles, 
and  dangerous  to  the  Union.  The  defendant  was  residing  in  the  city  in  pursuit  of  his 
private  affairs,  taking  no  part  in  the  acts  of  the  military ;  and  to  hold  under  the  sta- 
tute, that  he  could  not  plead  as  a  defence  that  he  had  paid  for  the  use  of  the  pre- 
mises, to  those  who,  in  the  plentitude  of  military  power,  were  exercising  dominion 
over  the  city,  was  such  a  clear  violation  of  every  principle  of  right,  that  it  was  not 
to  be  presumed  that  such  was  the  intention  of  the  legislature.  l£  was  not  to  be 
presumed  that  it  was  their  intention,  by  the  generality  of  the  terms  employed  in  the 
act,  to  repeal  the  law  of  nations,  and  violate  the  compact  of  the  confederacy;  it 
being  a  familiar  rule,  that  where  two  laws  were  in  any  of  their  provisions  repugnant 
to  each  other,  the  latter  was  not  deemed  to  be  a  repeal  of  the  first,  unless  the  in- 
tention to  do  so  was  clear  and  unmistakable.  Even  if  such  was  the  intention  in  the 
passage  of  the  act,  the  state  had  no  power  to  make  such  a  law.  The  power  to  go 
to  war  and  to  make  peace  was  vested  in  the  national  congress.  They  had  concluded 
peace  by  a  solemn  treaty,  and  peace  worked  an  oblivion  of  the  past.  Nor  was  it 
necessary  to  inquire  whether  the  particular  amnesty  embodied  in  the  treaty  would 
meet  the  defendant's  case,  for  his  defence  rested  upon  a  right,  included  and  pro- 
tected by  that  general  amnesty  or  immunity  thereafter,  for  any  act  done  during,  or 
having  relation  to  the  war  which,  as  between  belligerents,  is  implied  in  every  treaty 
of  peace,  whether  expressed  or  not.  The  treaty  bound  the  whole  confederacy,  and 
every  state,  and  no  member  of  the  compact  could  alter,  abridge  or  impair  it.1 

When  the  decision  was  made  known,  it  was  followed  by  a  burst  of  popular  indig- 
nation. A  public  meeting  was  called  a  few  days  after,  and  an  address  to  the  people 
of  the  state  adopted,  said  to  have  been  prepared  by  Melancton  Smith,  a  prominent 
lawyer,  and  afterwards  the  leader  of  the  anti  federal  side,  in  the  state  convention 
that  ratified  the  national  constitution ;  in  which,  after  acknowledging  the  uncommon 
ability  and  learning  displayed  in  the  argument,  and  while  conceding  the  necessity  of 
the  independence  of  courts  of  justice  both  of  the  people  and  of  the  legislature,  the 
address  denounced  the  decision  as  a  violation  of  the  privileges  of  the  people,  and  as  an 
act  of  judicial  tyranny,  and  closed  with  a  resolve  to  carry  the  case,  on  behalf  of  the 
plaintiff,  to  the  court  of  errors.  Nor  did  the  agitation  end  with  the  adoption  of  thia 

1  Argument  and  judgment  of  the  mayor's  court  of  the  city  of  New  York,  in  a  cause  between 
Elizabeth  Eutgers  and  Joshua  Waddington,  New  York.  Samuel  Loudon,  1T84,  in  tracts,  collected 
by  the  late  Thomas  B.  Chandler,  D.D.,and  vol.  xxxiii.  pamphlet  No.  8,  and  now  in  the  posses- 
sion of  Edward  B.  Corwin,  Esq.,  of  New  York.  Kec.  of  Mayor's  Court,  for  1784,  Aug.  27, 


64:  HISTORY   OF   THE   COURT   AND   OF  THE 

address,  but  the  subject  was  brought  before  the  legislature,  and  a  resolution  passed, 
declaring  the  decision  to  be  subversive  of  all  law  and  order,  and  calling  upon  the 
council  of  appointment  to  appoint  such  persons  mayor  and  recorder  as  would  be 
governed  by  the  law  of  the  land.  Waddiogton,  in  view  of  the  threatened  appeal, 
compromised  the  claim,  but  the  decision  of  Duane  settled  the  law,  and  the  act  was 
afterwards,  in  effect,  repealed  upon  the  motion  of  Hamilton,  in  1787.1  Duane  con- 
tinued to  preside  in  the  court  until  he  was  appointed  by  Washington,  after  the 
organization  of  the  United  States'  courts,  towards  the  close  of  1789,  district  judge  of 
New  York,  when  he  was  succeeded  by  Col.  Varick,  as  mayor.  During  the  six  years 
that  he  sat  in  the  court,  he  delivered  a  number  of  important  decisions,  nearly  all  of 
them  affirmed  by  the  supreme  court.  Some  of  them  are  to  be  found  in  the  early 
volumes  of  Johnson's  Cases,  but  as  our  reports  do  not  begin  until  ten  years  after  he 
ceased  to  act,  very  few  of  his  decisions  have  been  preserved. 

In  the  thirty  five  years  that  followed,  the  mayors  and  recorders  who  sat  in  this 
court  and  in  the  court  of  sessions,  embraced  a  succession  of  the  most  eminent  men 
in  the  state,  all  of  whom,  with  one  exception,  were  distinguished  lawyers.  During 
this  period  the  mayors  of  the  city  were,  Edward  Livingston,  De  Witt  Clinton,  Col. 
Marinus  Willet,  Jacob  Radcliffe  and  Cadwallader  D.  Golden;  and  the  recorders, 
Samuel  Jones,  father  of  the  late  chief  justice,  James  Kent,  Richard  Harrison, 
John  B.  Prevoost,  Maturin  Livingston,  Pierre  C.  Van  Wyck,  Josiah  Ogden  Hoff- 
man, Jacob  Radcliffe,  Peter  A.  Jay  and  Richard  Riker.  In  1802,  Edward  Living- 
ston, the  well  known  author  of  the  criminal  code  of  Louisiana,  who  was  then  mayor, 
prepared  and  published  a  small  volume  of  reports.2  It  contains  thirty  nine  cases, 
very  concisely  reported,  somewhat  in  the  manner  of  Anthon's  Nisi  Prius,  nearly  all 
of  them  upon  questions  of  importance.  As  the  volume  was  intended  for  private 
distribution,  but  a  small  number  of  copies  were  printed,  and  it  is  now  exceedingly 
rare,  no  copy  existing  even  in  our  public  libraries . 

During  the  mayoralty  of  De  Witt  Clinton,  and  the  recordership  of  Maturin  Living- 
ston, Clinton,  either  through  choice  or  from  the  increasing  duties  of  his  office,  ceased  to 
preside  in  the  mayor's  court;  and  from  that  time  until  1821,  the  recorder  sat  as  the 
presiding  judge  of  that  court,  and  the  mayor  as  presiding  judge  of  the  court  of 
sessions,  the  recorder  being  the  recognized  head  of  the  one,  and  the  mayor  of  the 
other.  In  1821,  it  was  concluded,  from  the  increasing  importance  of  the  mayor's 
court,  and  as  the  mayor  had  long  ceased  to  preside  in  it,  that  a  name  denoting  its 
municipal  origin  should  be  abandoned,  and  a  permanent  law  judge  appointed.  Ac- 
cordingly, an  act  was  passed,  changing  its  name  to  the  court  of  common  pleas  for 
the  city  and  county  of  New  York,3  and  creating  a  first  judge,  to  hold  his  office  dur- 
ing good  behavior,  or  until  he  should  attain  the  age  of  sixty  years ;  but  by  the  con- 
stitution which  was  adopted  one  year  later,  the  tenure  of  the  office  was  changed  to 
five  years,  and  the  power  of  appointment  theretofore  lodged  in  the  council  of  ap- 
pointment, was  vested  in  the  governor.  The  mayor,  recorder  and  aldermen  were 


*  Laws  of  N.  Y.  1787,  10  Ses.    McKisson's  Ed.  p.  132. 

*  Judicial  Opinions  delivered  in  the  Mayor's  Court  of  the  city  of  New  York,  in  the  year  1802. 
FOBSA.N  ET  PACK  OLIM  MEMINISSI  JUVABIT.    New  York:    D.  Longworth,  1803.    Many  of  the 
decisions  of  the  Mayor's  Court,  moreover,  will  be  found  in  the  volumes  of  the  City  Hal!  Recorder- 

1  This  act  was  drawn  by  John  Anthon,  Esq.,  then  the  most  prominent  practitioner  in  the  Mayor's 
Court. 


JUDICIAL   OKGANIZATION   OF  THE   STATE.  65 

still  authorized  to  sit  in  it ;  but  the  first  judge  was  empowered  to  hold  the  court 
without  them,  and  it  was  made  his  especial  duty  to  hold  it.1  After  the  passage  of 
this  act,  John  T.  Irving  was  appointed  first  judge ;  and  upon  the  appointment  of 
Judge  Irving,  though  no  provision  to  that  effect  was  contained  in  the  act,  Stephen 
Allen,  who  was  the  mayor,  ceased  to  preside  in  the  court  of  sessions.  Recorder 
Hiker,  who  had  sat  for  some  years  in  the  mayor's  court,  took  the  mayor's  place  as 
presiding  judge  of  the  sessions;  and  Judge  Irving  sat  alone  as  judge  of  the  court  of 
common  pleas  ;  neither  the  mayor,  recorder  or  aldermen,  though  entitled  to  do  so, 
taking  any  part  thereafter  in  its  proceedings,  except  when  all  the  judges  were  con- 
vened, in  what,  by  virtue  of  the  act  of  1821,  was  denominated  the  county  court. 
This  tribunal,  composed  of  the  first  judge,  the  mayor,  recorder  and  all  the  aldermen, 
was  occasionally  convened  for  the  impeachment  and  trial  of  officers  of  the  munici- 
pal government,  the  first  judge  acting  as  presiding  officer,  until  it  was  abolished  by 
the  constitution  of  1846.  Judge  Irving  presided  alone  in  the  court  for  thirteen 
years,  during  which  time  the  leading  practitioners  before  him  were  John  Anthon, 
Martin  S.  Wilkins,  Elisha  W.  King,  John  T.  Mulligan,  Robert  Bogardus,  Pierre  C. 
Van  Wyck,  Thomas  Phoenix,  Joseph  D.  Fay,  David  Graham,  sen.,  Hugh  Maxwell, 
John  Leveridge  and  William  M.  Price,  though  the  members  of  what  was  then  known 
as  the  senior  bar.  Thomas  Addis  Emmet,  Peter  A.  Jay,  Peter  W.  Radcliffe,  Samuel  M. 
Hopkins,  David  B.  Ogden,  William  Slosson,  William  Samson  and  others,  appeared  fre- 
quently in  the  court,  as  associate  counsel  in  important  cases.  Judge  Irving  continued 
to  preside  as  first  judge  until  his  death,  in  all,  seventeen  years.  As  a  judge  he  was  in 
many  respects  a  model  for  imitation.  To  the  strictest  integrity  and  a  strong  love 
of  justice,  he  united  the  most  exact  and  methodical  habits  of  business.  Attentive, 
careful  and  pains  taking,  few  judges  in  this  state  ever  have  been  more  accurate  or 
perhaps  more  generally  correct  in  their  decisions.  While  presiding  at  nisi  prius,  he 
was  not  what  would  be  termed  a  quick  minded  man ;  but  when  questions  were  argued 
before  him  in  bane,  he  bestowed  so  much  care,  and  considered  each  case  so  attentively, 
that  his  judgments  were  rarely  reversed,  and  were  uniformly  treated  by  the  courts  of 
revision  with  the  greatest  respect.  He  shared,  in  common  with  his  more  distinguished 
brother,  Washington  Irving,  a  talent  for  literary  composition,  and  wrote  with  great 
elegance,  ease  and  perspicuity.  In  early  life  he  gave  promise  of  attaining  a  dis- 
tinguished rank  as  a  writer,  and  published  in  the  newspapers  of  the  day,  in  addition 
to  other  compositions,  many  poetical  effusions  upon  political  subjects,  remarkable  for 
their  point,  brilliancy  and  satire ;  but  his  weighty  judicial  duties — the  close  application 
to  which,  no  doubt,  shortened  his  life — left  him  no  leisure ;  and  he  appears  to  have 
lost  all  taste  thereafter  for  literary  pursuits.  Upon  his  death,  the  bar  caused  a 
handsome  marble  tablet,  with  his  bust  in  relievo,  and  a  suitable  inscription,  to  be 
placed  in  the  court  room,  as  a  mark  of  respect  for  his  memory.1* 

In  1800,  the  terms  of  the  court  of  sessions  were  changed  to  six  times  a  year,  and, 


i  Laws  of  New  York,  1821,  chap.  T2. 

a  VIRO  •  HONORATO 

IOANNI  •  T  •  IRVING 

QVEM  •  JVDICIS  •  OFFICIO  •  MVLT03  •  PER  •  ANNOS  •  FVNCENTEM 

ET-LEQVM-DOCTRINA-ET-MORVM'INTEGRITAS-FELICISSEME-CONDECORABANT 

IVRISCONSVLTI  •  NEO-EBORACENSES  •  QYIBV8  •  ET  •  AMICI  •  ET  -MAGISTBI 

TAM  •  TRISTE  'RELQVIT  •  DESIDERIVM 

H  •  M  •  PONENDVM  •  CVRATERVNT 


66 


HISTOKT   OF   THE   COUET   AXD   OF  THE 


in  1813,  -were  directed  to  be  held  monthly.  In  1850,  a  city  judge  was  created 
•with  the  same  powers  as  the  recorder.  In  1847,  the  power  of  the  aldermen  to  sit 
in  the  court  of  common  pleas  was  taken  away ;  and  by  the  amended  charter  of 
1853,  they  are  no  longer  entitled  to  sit  in  the  court  of  sessions. 

As  any  cause  might  be  removed  for  trial  from  the  mayor's  court  to  the  supreme 
court  by  habeas  corpus  or  certiorari,  where  the  amount  involved  exceeded  £20,  an 
act  was  passed  in  1789,  forbidding  their  removal,  except  in  certain  cases,1  unless  the 
amount  exceeded  £100  ($250).  In  1823,  this  was  increased  to  $500.2  In  1837  it 
was  further  increased  to  $2,500,s  and  in  1844,  the  power  to  remove  any  cause  was 
taken  away,  and  the  jurisdiction  of  the  court  remained  thereafter  unlimited  in 
amount.4 

In  1834,  an  associate  judge  of  the  court  of  common  pleas  was  created,  who  was 
vested  with  all  the  powers  of  the  first  judge,  and  Michael  Ulshoeffer  was  appointed  to 
the  office.  In  1838,  upon  the  death  of  Judge  Irving,  Judge  Ulshoeffer  was  appointed 
first  judge,  and  Daniel  P.  Ingraham  associate  judge.  In  1839,  an  additional  as- 
sociate judge  was  created,  vested  with  all  the  powers  of  the  other  judges,  and  Wil- 
liam Inglis  appointed.  In  1844,  Charles  P.  Daly  was  appointed  in  place  of  Judge 
Inglis,  and  the  court,  as  thus  constituted,  a  first  judge  and  two  associates,  remained 
until  the  adoption  of  the  constitution  of  1846.  By  that  instrument,  the  court  of 
common  pleas  and  the  superior  court  of  the  city  of  New  York  were  specially 
excepted  from  the  general  judicial  re-organization  of  the  state,  but  by  an  act  passed 
in  the  following  year,6  it  was  provided  that  the  terms  of  the  judges  of  both  courts 
should  expire  on  the  17th  January  thereafter,  and  that  an  election  of  judges  by  the 
people,  for  each  of  the  courts,  should  take  place  in  the  June  preceding;  that  the 
terms  of  the  judges  elected  should  be  classified  in  terms  of  two,  four  and  six  years, 
to  be  determined  by  lot,  and  that  the  election  of  all  judges  thereafter,  in  either  of  the 
courts,  should  be  for  six  years.  In  June,  1847,  all  the  existing  judges  of  the  common 
pleas  were  elected,  and  the  allotment  of  terms  resulted  as  follows :  Michael  Ulshoeffer, 
two  years,  Daniel  P.  Ingraham,  four  years,  and  Charles  P.  Daly,  six  years.  In  1849, 
Lewis  B.  Woodruff  was  elected  in  place  of  Judge  Ulshoeffer,  and  in  June,  1850, 
Daniel  P.  Ingraham  was  appointed  first  judge.  In  1851,  Judge  Ingraham  was 
re-elected  for  six  years,  and  in  1853,  Charles  P.  Daly  was  re-elected  for  a  similar 
term. 

By  the  judiciary  act  of  1847,  by  the  code  passed  in  1848,  and  amended  in  1849, 
1851  and  1853,  the  court  of  common  pleas  exercises  unlimited  jurisdiction,  in  law  or 
equity,  where  the  defendants  reside,  or  are  personally  served  with  process,  in  the 
city  of  New  York,  or  where  one  or  more  defendants,  jointly  liable  upon  contract,  so 
reside,  or  are  personally  served  in  the  city.  It  has  also  jurisdiction  against  corpora- 
tions, created  by  the  laws  of  the  state,  who  transact  their  general  business,  or  keep 
an  office  for  the  transaction  of  business,  in  the  city  of  New  York,  and  against  foreign 
corporations,  upon  any  cause  of  action  arising  in  the  state,  or  for  the  recovery  of  any 
debt  or  damages,  whether  liquidated  or  not,  arising  upon  a  contract  made,  executed 


»  Laws  of  1844, 30. 
a  Laws  of  1S47,  279. 
3  Laws  of  1789. 
«  Laws  of  1S23. 
6  Laws  of  1837, 547. 


JUDICIAL   ORGANIZATION   OF   THE   STATE. 


or  delivered  within  the  state.  By  the  code,  certain  actions  are  required  to  be  tried 
in  the  county  where  the  subject  matter  of  the  action  is  situated,  or  the  cause  of 
action  has  arisen  in  the  county  ;  of  which  actions  the  court  has  jurisdiction,  irrespect- 
ive of  the  residence  of  the  parties,  or  the  personal  service  of  process.  They  em- 
brace actions  for  the  recovery  of  real  property,  or  of  an  estate  or  interest  therein,  or 
for  the  determination,  in  any  form,  of  such  right  or  interest ;  for  injuries  to  real  pro- 
perty ;  for  the  partition  of  real  property  ;  for  the  foreclosure  of  a  mortgage  of  real 
property ;  for  the  recovery  of  personal  property  distrained ;  for  the  recovery  of  a 
penalty  or  forfeiture  imposed  by  statute,  except  where  it  is  imposed  for  an  offence 
committed  on  a  lake,  river  or  other  stream  of  water,  situated  in  two  or  more  coun- 
ties ;  in  which  case,  the  action  may  be  brought  in  any  county  bordering  on  such  lake, 
liver  or  stream,  and  opposite  to  the  place  where  the  offence  was  committed  ;  and 
actions  against  a  public  officer,  or  person  specially  appointed  to  execute  his  duties, 
for  an  act  done  by  him,  in  virtue  of  his  office,  or  against  a  person  who,  by  his  com- 
mand, or  in  his  aid,  shall  do  any  thing  touching  the  duties  of  such  office.  And 
by  the  judiciary  act,  as  well  as  by  an  act  passed  in  1854,1  the  court  also  possesses 
jurisdiction,  in  special  proceedings,  for  the  disposition  of  the  real  estate  of  infants, 
where  such  real  estate  is  situated  in  the  city  of  New  York ;  the  care  and  custody  of 
the  persons  and  estates  of  lunatics,  persons  of  unsound  mind,  or  habitual  drunkards, 
residing  in  the  city ;  the  mortgage  or  sale  of  the  real  estate  of  religious  corporations, 
and  in  the  admeasurement  of  dower,  in  lauds  within  the  city.  And  an  appeal  from 
its  judgments  or  determinations,  except  in  an  action  originally  commenced  in  the 
marine  or  a  justice's  court,  lies  directly  to  the  tribunal  of  last  resort,  the  court  of 
appeals.3 

The  court  of  common  pleas  is  made  by  the  code  the  court  of  review,  from  the  judg- 
ments of  the  marine  or  the  district  justices'  courts  of  the  city,  and  its  decision  upon  an 
appeal  from  any  of  these  courts  is  final.3  It  has,  also,  exclusive  jurisdiction  in  pro- 
ceedings upon  liens  against  real  estate,  under  the  act  passed  in  1851,  "  for  the  better 
security  of  mechanics  and  others  erecting  buildings  and  furnishing  materials  therefor, 
in  the  city  and  county  of  New  York,"  except  that  when  the  lien  is  docketed  for  a  sum 
not  exceeding  one  hundred  dollars,  proceedings  may  be  instituted  in  the  marine  court, 
or  in  a  justice's  court  in  the  judicial  district  where  the  building  is  situated.4  And,  also , 
the  exclusive  power  of  remitting  fines  imposed  by  the  court  of  sessions  as  penalties, 
or  of  relieving  against  or  remitting  judgment  entered  upon  forfeited  recognizances 
under  the  statute.5  And  of  entertaining  proceedings  supplementary  to  execution, 
upon  judgments  recovered  in  the  marine  and  district  courts  in  the  city,  where  a  tran- 
script of  the  judgment  is  docketed  with  the  county  clerk,  and  the  amount  re- 
covered exceeds,  exclusive  of  costs,  twenty  five  dollars. 

fn  1854,  an  act  was  passed,  creating  a  clerk  of  the  court,  to  be  appointed  by  the 
judges;  the  clerk  of  the  county  having  theretofore  been  the  clerk  both  of  the  su- 
preme court  and  of  the  court  of  common  pleas,  and  to  remove  all  doubt  as  to  the  gene- 
ral powers  and  jurisdiction  of  the  court,  this  act  affirmed  its  powers  in  remitting 


Laws  of  1854,  464. 

Code,  1852,  §  33, 123  and  124. 

Code,  §  11,  subdiv.  4,  §  84. 

Laws  of  1851,  953. 

Laws  of  1844,  p.  469.    Laws  of  1845,  p,  250,    Laws  of  1854,  p.  464. 

F 


OS  HISTORY   OF   THE   COURT,    &C. 

fines  aud  recognizances ;  in  correcting  and  discharging  the  dockets  of  liens  and 
judgments  entered  upon  recognizances;  affirmed  all  its  previous  powers;  conferred 
upon  it  all  the  powers  then  or  thereafter  to  be  vested  in  the  county  courts;  aud 
generally  confirmed  it*  powers  as  a  court  of  original  and  general  jurisdiction,  to 
the  same  extent  as  they  were  had  and  exercised  before  the  adoption  of  the  constitu- 
tion of  1846.1 


1  Laws  of  1854,  p.  4G4. 


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